State v. Davis

• Decision Date: 31 May 1984
• Docket Number: No. 49913-6,49913-6
• Citation: 101 Wn.2d 654,682 P.2d 883
• Parties: The STATE of Washington, Respondent, v. Michael Curtis DAVIS, Petitioner.
• Court: Washington Supreme Court

Page 654

101 Wn.2d 654

682 P.2d 883

The STATE of Washington, Respondent, v. Michael Curtis DAVIS, Petitioner.

No. 49913-6.

Supreme Court of Washington En Banc.

May 31, 1984.

Skoog, Mullin, Gagliardi & Kelley, George S. Kelley, Tacoma, for petitioner.

William Griffies, Pierce County Prosecutor, Christine Jane Quinn-Brintnall, Deputy County Pros., Tacoma, for respondent.

ROSELLINI, Justice.

Petitioner Michael C. Davis appeals a Court of Appeals decision reversing the trial judge's decision to grant petitioner's motion for a new trial. The case presents an issue of first impression for this court: Where criminal liability for a first degree robbery is premised upon accomplice liability, must the State prove that the accomplice knew the principal was armed?

After reviewing both the statutes and authority from states with similar legislative schemes, we find that the State is not required to prove that the accomplice had knowledge that the principal was armed. We affirm the decision of the Court of Appeals, Division Two. State v. Davis, 35 Wash.App. 506, 667 P.2d 1117 (1983).

Petitioner's conviction arises from the following facts: On December 30, 1980, Diane MacFarlane, a clerk in the A & D Pharmacy, was approached by a man while she stood behind the counter. The man pointed a handgun at her and demanded money. Standing approximately 12 feet away from the cash register, near the glass front door, was a second man who appeared to be standing lookout.

After receiving the money, the two men ran from the store. They ran together away from the store and past a state liquor store next door. The clerk in the liquor store recognized one of the men as someone who, just prior to the robbery, had been in her store. She informed police of this fact and gave them a bottle of liquor that the man had handled. Police recovered petitioner's fingerprint from the bottle, arrested him and charged him with robbery in the first degree.

At trial, petitioner admitted that he had been present both at the liquor store and the pharmacy the evening of the robbery. He identified his companion, Herbert Wallace, and asserted that he was not aware Wallace had planned on robbing the pharmacy until Wallace produced the gun and demanded the money from the clerk. He testified that at this point he became frightened and fled.

The owner of the pharmacy testified that petitioner was the individual who stood lookout at the door. Neither clerk could identify petitioner.

The jury was instructed that it should find petitioner guilty of robbery if he or an accomplice was armed with a deadly weapon during the course of the robbery. Instruction 11.

The prosecution submitted a deadly weapon instruction that stated:

A deadly weapon is an implement or instrument which has the capacity to inflict death and from the manner in which it is used, is likely to produce or may easily and readily produce death. The following instruments are included in the term deadly weapon: pistol, revolver or any other firearm.

Instruction 10.

The jury also received the following accomplice instruction:

A person is an accomplice in the commission of a crime, if, with knowledge that it will promote or facilitate the commission of the crime, he or she either:

1) solicits, commands, encourages, or requests another person to commit the crime; or

2) aids or agrees to aid another person in planning or committing the crime.

The word "aid" means all assistance whether given by words, acts, encouragement, support or presence. A person who is present at the scene and is ready to assist by his or her presence is aiding in the commission of the crime.

Instruction 8.

Defense counsel requested an instruction that would have informed the jury that petitioner could not be "convicted of being armed with a deadly weapon unless he himself was armed". Instruction 3. The trial court rejected this instruction and informed the jury instead that "when one or more persons act as accomplices ... all of them may be deemed armed, even though only one ... in fact had a gun." Instruction 9.

The jury found Davis guilty of robbery in the first degree but answered the deadly weapon interrogatory in the negative. Alleging that these verdicts were inconsistent, petitioner moved for a new trial. The trial judge granted that motion and the State appealed. The Court of Appeals, Division Two, reversed after concluding that the verdicts were not inconsistent. Davis petitioned for review, which was granted.

The present issue arises from the interrelationship of two statutes, the accomplice liability statute, RCW 9A.08.020(1) and the first degree robbery statute.

A person is guilty of a crime if it is committed by another person for whose conduct he is legally accountable. RCW 9A.08.020(1). A person is legally accountable for the conduct of another person if he is an accomplice to that person in the commission of the crime. RCW 9A.08.020(2)(c). A person is an accomplice if:

[w]ith knowledge that it will promote or facilitate the commission of the crime, he

(i) solicits, commands, encourages, or requests [another] person to commit it; or

(ii) aids or agrees to aid [another] person in planning or committing it;

RCW 9A.08.020(3)(a).

A person is guilty of 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. RCW 9A.56.190. If the robber is armed with a deadly weapon, he is guilty of robbery in the first degree. RCW 9A.56.200(1)(a).

The issue presented by this case involves the interrelationship between these two statutes. Specifically, the question requires a determination of whether the accomplice liability statute predicates criminal liability on general knowledge of a crime or specific knowledge of the elements of the participant's crime, i.e., possession of a gun.

The Divisions of the Court of Appeals were originally split on this question. Initially, in State v. Plakke, 31 Wash.App. 262, 266, 639 P.2d 796 (1982), Division Two interpreted these statutes as requiring that the State prove the defendant shared in "his principal's guilty knowledge." Accord State v. McKeown, 23 Wash.App. 582, 591-93, 596 P.2d 1100 (1979). The court therefore concluded that in order to establish accomplice liability for an armed robbery, the State must prove that the alleged accomplice knew his coparticipant was armed. Plakke, 31 Wash.App., at 266, 639 P.2d 796.

In the present case, Division Two overruled Plakke and held that complicity to an armed robbery does not depend upon knowledge of the principal's weapon. Accord Commonwealth v. Yeager, 599 S.W.2d 458 (Ky.1980); State v. Coats, 301 N.C. 216, 270 S.E.2d 422 (1980). The court apparently found this conclusion to be compelled by this court's decision in State v. McKim, 98 Wash.2d 111, 653 P.2d 1040 (1982).

In McKim, we held that the deadly weapon statute, RCW 9.95.040, requires that the State prove the defendant was either actually or constructively armed with a deadly weapon. McKim, at 117, 653 P.2d 1040. Constructive possession exists if the defendant knew his coparticipant was armed. McKim, at 117, 653 P.2d 1040.

Our conclusion in McKim rested in part upon our recognition of the differences between accomplice liability for a substantive crime and accomplice liability for enhancement statutes. We reasoned that the new complicity statute, unlike the old one, made an accomplice equally liable only for the substantive crime. McKim, at 117, 653 P.2d 1040. We reaffirm this distinction. As to the substantive crime, the law has long recognized that an accomplice, having agreed to participate in a criminal act, runs the risk of having the primary actor exceed the scope of the preplanned illegality. State v. Carothers, 84 Wash.2d 256, 525 P.2d 731 (1974).

The correctness of this holding should be apparent. The legislature has said that anyone who participates in the commission of a crime is guilty of the crime and should be charged as a principal, regardless of the degree or nature of his participation. Whether he holds the gun, holds the victim, keeps a lookout, stands by ready to help the assailant, or aids in some other way, he is a participant. The elements of the crime remain the same.

Carothers, at 264, 525 P.2d 731.

Furthermore, this distinction recognizes that the Legislature has a valid interest in discouraging the use of deadly weapons by imposing strict liability on all those involved in robbery which, by its very nature, generally requires use of weapons to facilitate the act of illegally obtaining money from another by force.

Our conclusion disposes of petitioner's original argument that the special weapon finding and the guilty verdict on the first degree robbery charge were inconsistent. We agree with the Court of Appeals conclusion. The verdicts are not inconsistent. As the Court of Appeals observed:

The special verdict, however, only directed the jury to answer whether defendant was armed with a deadly weapon. The jury answered no. The special finding may be interpreted to mean either the jury did not believe defendant was guilty of first degree robbery under the accomplice theory instruction, or it may mean the finding was in accordance with the facts in the case, namely, that defendant did not possess a weapon during the robbery. This latter interpretation follows logically from the instruction given with the special verdict. A special finding as to whether defendant was armed with a deadly weapon adds nothing to the element of the crime and a negative finding of possession, consistent with the evidence, is not inconsistent with the general verdict. State v. Kimball, [14 Wn.App. 951, 546 P.2d 1217 (1976) ]. Accordingly, we hold the verdicts are not inconsistent.

State v. Davis, 35 Wash.App. 506, 509, 667 P.2d 1117 (1983).

We conclude that petitioner's conviction on first degree robbery should be affirmed.

DOLLIVER, DORE and DIMM...