State v. Claborn

• Decision Date: 21 May 1981
• Docket Number: No. 46994-6,46994-6
• Citation: 95 Wn.2d 629,628 P.2d 467
• Parties: STATE of Washington, Respondent, v. Terry Lee CLABORN, Petitioner.
• Court: Washington Supreme Court

Page 629

95 Wn.2d 629

628 P.2d 467

STATE of Washington, Respondent, v. Terry Lee CLABORN, Petitioner.

No. 46994-6.

Supreme Court of Washington, En Banc.

May 21, 1981.

Lewis Nomura, Seattle-King County, Public Defender Assoc., Seattle, for petitioner.

Norm Maleng, King County Prosecutor, Alan S. Paja, J. Robin Hunt, Jose E. Gaitan, Deputy Pros. Attys., Seattle, for respondent.

STAFFORD, Justice.

This case comes before us on a petition to review appellant (petitioner in this court) Terry Claborn's conviction for first degree assault, burglary and theft, the latter two being enhanced by special jury findings of having been committed while armed with a deadly weapon which was a firearm. We affirm the Court of Appeals, 25 Wash.App. 661, 611 P.2d 1268.

Appellant Claborn, Robert Alford and Donny Milsap purchased a .22-caliber rifle and a shot gun on the afternoon of July 26, 1978. That evening the three drove to Iddings Farm Service. Appellant was armed with a .357 magnum pistol, Milsap had the loaded .22 rifle and Alford carried a crowbar. Milsap stood guard as Alford broke into the tool shop with the crowbar, and Alford and appellant loaded tools into an old truck owned by Iddings Farm Service. Thereafter, Milsap returned the rifle to Alford. Appellant drove the truck with Alford as a passenger and Milsap followed in their automobile.

Officer Gordon, on routine patrol, observed the truck followed closely by a car. The truck had no tail lights. Gordon turned his police car around, overtook the vehicles, pulled around the car and turned on his blue lights. The truck immediately accelerated so Gordon turned on his siren and began pursuit.

Appellant drove the truck in an evasive manner while Alford stuck his upper body out of the window and began firing at officer Gordon with the .22-caliber rifle. Thereafter, he continued firing with appellant's .357 magnum. The chase ended when the truck failed to negotiate a turn and crashed into a wooded area. Appellant was arrested nearby after being tracked by dogs to his hiding place. Alford escaped and was arrested several weeks later in California.

Appellant and Alford were charged identically. Count I alleged first degree assault, i. e., assault with intent to kill officer Gordon while committing a felony "to-wit: theft, upon the person or property of Jim R. Iddings ... "; count II charged second degree burglary; and count III charged first degree theft. Counts II and III contained special allegations that appellant and Alford were armed with a deadly weapon which was a firearm.

At the close of the State's case appellant moved against Count I claiming insufficient evidence to prove the necessary allied felony to establish first degree assault. The State was permitted to amend the felony charged in Count I from theft to "possession of stolen property in the first degree".

The jury found both appellant and Alford guilty on all three counts and also found appellant was armed with a deadly weapon and a firearm on the burglary and theft counts. Alford was found to be armed during the theft but not the burglary. The trial court imposed concurrent sentences on each.

The Court of Appeals affirmed the trial court on all three counts as to appellant and Alford. Appellant alone filed a petition for review in this Court. Thus, only the issues raised by him are before us. Finding no prejudicial error, we affirm the Court of Appeals.

Appellant argues the jury instructions pertaining to the use of a deadly weapon and the use of a firearm were erroneous in that they did not specifically provide that the State had the burden of proving the special allegations "beyond a reasonable doubt." He asserts he is entitled to raise the issue for the first time on appeal because it involves a constitutional error of fundamental proportions. See State v. Green, 94 Wash.2d 216, 231, 616 P.2d 628 (1980); State v. McHenry, 88 Wash.2d 211, 558 P.2d 188 (1977).

In State v. Tongate, 93 Wash.2d 751, 613 P.2d 121 (1980), this Court held that general instructions on presumptions of innocence and the State's burden of proving an underlying offense beyond a reasonable doubt are insufficient for a deadly weapon special verdict, under RCW 9.95.040, where the fact to be determined is not an element of the crime charged. The same apparent error is said to have occurred here, although in addition to the deadly weapon allegation there was also a firearm allegation under RCW 9.41.025.

We need not reach the asserted constitutional issue, however, and thus decline to do so. A reviewing court should not pass on constitutional matters unless absolutely necessary to the determination of the case. ¹ Ohnstad v. Tacoma, 64 Wash.2d 904, 907, 395 P.2d 97 (1964); accord Bresolin v. Morris, 86 Wash.2d 241, 250, 543 P.2d 325 (1975). We hold only that even if there was instructional error, it was, under the facts of this case, harmless beyond a reasonable doubt and thus was not reversible error. See State v. Burri, 87 Wash.2d 175, 182, 550 P.2d 507 (1976); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 24 A.L.R.3rd 1065 (1967).

While RCW 9.95.040 requires the presence of a deadly weapon in fact in order for the sentence enhancement provisions to operate, State v. Tongate, supra, and the same would appear to be true of a firearm under RCW 9.41.025, there is absolutely no question of their use in the instant case. The only evidence in the record reveals appellant was armed with a real .357 magnum pistol during the theft and burglary. He was seen by an eyewitness to be armed during the burglary and theft. Officer Gordon testified to having been shot at from the truck by a large caliber hand gun. After the chase and arrest the .357 magnum pistol was recovered from the truck as were three spent .357 magnum shell casings, a small ammunition case containing six live .357 magnum rounds (with Claborn's latent thumb print on the inside of the case) and a spent .22 caliber bullet lodged in a tool box located on the truck bed. Further, appellant, at the time of arrest, conceded his passenger had fired the .357 magnum pistol at officer Gordon. There is absolutely no evidence to the contrary, and this was never a contested issue at trial.

With these facts before us, we have no hesitancy in holding the jury could have reached no result other than that the crimes charged herein occurred while appellant was armed with a deadly weapon and a firearm. Thus, the alleged constitutional error, if any, was harmless beyond a reasonable doubt.

Even if the jury were to have believed it was Alford who possessed the .357 magnum pistol during the theft, burglary and subsequent chase, it would in this case avail appellant nothing. The trial court gave the jury "accomplice" instructions and an allied instruction that if a defendant commits a crime while armed with a deadly weapon which is a firearm, and a co-defendant is legally accountable for the armed defendant's actions, both defendants are deemed armed with a deadly weapon which is a firearm. The jury was also informed that this is true even though a co-defendant might never have had actual possession of the weapon. Appellant did not claim it was error to instruct on the subject of "accomplice" and did not challenge the allied instruction. Thus, they become the law of the case. State v. Robinson, 92 Wash.2d 357, 359, 597 P.2d 892 (1979). Under the instructions appellant's sentence could have been enhanced even if he had not touched a weapon.

Next, appellant contends the trial court committed error by permitting the jury to consider "possession of stolen property in the first degree" as a felony sufficient to support assault in the first degree under RCW 9A.36.010(1) (a) which provides in pertinent part:

Every person, who with intent to kill a human being, or to commit a felony upon the person or property of the one assaulted, or of another, shall be guilty of assault in the first degree when he:

(a) Shall assault another with a firearm ...

(Italics ours.) He asserts the assault statute is the counterpart of our "felony-murder" statute, RCW 9A.32.030(1)(c), and therefore the rules governing "felony-murder" should be applied in "felony-assault" cases also. ² He then contends the required causal connection between the crimes and the assault did not exist here, see State v. Golladay, 78 Wash.2d 121, 470 P.2d 191 (1970). Further, it is said, the underlying felony of "possession of stolen property" is passive, non-violent and an inherently non-dangerous crime and as such should not support a felony-assault conviction. In both of these arguments appellant, in effect, opts for a rule that would consider only the statutory elements of the crime in the abstract and would exclude, without considering any attendant facts, all felonies which on the face of the statute do not appear to be inherently dangerous. This view is overly restrictive.

Appellant's suggested consideration of "possession of stolen property in the first degree" would force us to view the crime in a vacuum. It would require a cavalier disregard of facts surrounding the material event, i. e., appellant's need to commit an assault to remain in possession of the booty and to escape. It would require us to disregard the fact that before committing the crimes involved appellant armed himself, apparently contemplating that violence might be necessary.

Undoubtedly a small minority of states which have established an "inherently dangerous" limitation to the "felony-murder" rule follow the position taken by appellant. The better view, however, has permitted a somewhat more unrestricted use of collateral felonies. This view requires that there be a causal connection between the collateral felony and the death and that the death be a reasonably foreseeable by-product of the underlying felony. In determining these issues courts have looked both to the nature of the felony and to the circumstances...