State v. Freeman

• Citation: 108 P.3d 753,153 Wash.2d 765
• Decision Date: 17 March 2005
• Docket Number: No. 74861-6., No. 74656-7
• Court: United States State Supreme Court of Washington
• Parties: STATE of Washington, Respondent, v. Michael O. FREEMAN, Petitioner, State of Washington, Petitioner, v. William L. Zumwalt, Respondent.

108 P.3d 753

153 Wash.2d 765

STATE of Washington, Respondent, v. Michael O. FREEMAN, Petitioner, State of Washington, Petitioner, v. William L. Zumwalt, Respondent.

Nos. 74656-7, 74861-6.

Supreme Court of Washington, En Banc.

Argued September 28, 2004.

Decided March 17, 2005.

David Bruce Koch, Seattle, Terry Jay Bloor, Benton County Prosecutors Office, Kennewick, for Petitioner.

Dennis John McCurdy, King County Prosecutor's Office, Seattle, Sharon Marie Brown, Pasco, for Respondent.

CHAMBERS, J.

¶ 1 "No person shall be ... twice put in jeopardy for the same offense." CONST. art. I, § 9; accord U.S. CONST. amend. V. With the increasing proliferation of criminal statutes, the same criminal conduct might violate multiple statutes. Because of this, courts must determine whether, and if so, when, convicting a defendant of several different crimes based on the same conduct violates double jeopardy. This largely turns on whether the legislature intended to punish the conduct as separate crimes or to punish the conduct as a single, "higher" felony.

¶ 2 In both of the cases before the court today, the defendants committed an assault in furtherance of first degree robbery. In both cases, the trial courts entered separate convictions for both the assault and the robbery. Different divisions of the Court of Appeals affirmed in one case and reversed in the other. We affirm the Court of Appeals in each case.

FACTS

¶ 3 STATE v. FREEMAN. Late one night, Javon Pitchford was invited to a party by a girl he had recently met. Pitchford did not know it at the time, but he and the girl had a mutual acquaintance in one of his old childhood friends, Michael Freeman. Freeman and Pitchford had seen each other only occasionally since childhood. As it happened, Freeman was among a group of men sent to pick Pitchford up and take him to the party.

¶ 4 But these men did not take Pitchford to the party. Instead, after a few detours, they stopped the car on a dark, dead-end street. Freeman got out, walked around to Pitchford's side of the car, opened the door, drew a .45- caliber handgun, and ordered Pitchford to hand over any valuables. When Pitchford did not immediately comply, Freeman said, "What, you think I won't shoot you?" and fired a single shot. 1 Report of Proceedings (RP) (Freeman) at 58-59. The bullet ripped through Pitchford's arm, chest, intestines, colon, and liver. Pitchford crawled out the other side of the car and collapsed bleeding in a driveway. Freeman and his associates robbed him and apparently left him for dead.

¶ 5 Miraculously a cab driver found Pitchford, and he was taken to Harborview Medical Center in the usually deadly state of stage four shock. When Pitchford regained consciousness three days later, he identified Freeman as his assailant. A jury later convicted Freeman of both first degree assault and first degree robbery.

¶ 6 At sentencing, Freeman unsuccessfully argued that the two convictions were the same for double jeopardy purposes because the jury was instructed that the use of force (effectively, the assault) was an element of the robbery. After multiple sentencing hearings, the trial judge ruled that the two convictions were not the same for double jeopardy purposes because it was "clear that the shooting of Javon Pitchford was not necessary to accomplish the robbery. It was gratuitous ... one could almost say a cold-blooded afterthought to and not just an adjunct of the robbery." 3 RP (Freeman) at 435. Freeman was sentenced to 231 months confinement, with the assault and robbery convictions running concurrently, and the firearms enhancements running consecutively. Freeman appealed to the Court of Appeals, which affirmed (State v. Freeman, 118 Wash.App. 365, 76 P.3d 732 (2003)), and we granted review.

¶ 7 STATE v. ZUMWALT. William Lars Zumwalt and an acquaintance offered to sell drugs to a woman they met at the Fiesta Bowl Casino in Richland, Washington. They agreed to meet in the parking lot to conclude the transaction. Once there, Zumwalt apparently had second thoughts about selling the woman drugs. Instead of simply leaving, Zumwalt punched the victim hard in the face with his fist, knocking her to the ground. He caused serious injuries, including fracturing her eye socket. She was then robbed of approximately $300 in cash and casino chips.

¶ 8 Zumwalt later admitted he assaulted the woman but denied robbing her. He told the trial judge that he had become suspicious that she might be an agent of the local drug enforcement agency, grown fearful, and was merely trying to get away from her. The trial judge did not find this credible and convicted Zumwalt of first degree robbery and second degree assault. At sentencing, Zumwalt unsuccessfully moved to have the assault conviction vacated as merged with the robbery. The trial judge declined and entered both convictions, sentences to be served concurrently. The Court of Appeals reversed (State v. Zumwalt, 119 Wash.App. 126, 82 P.3d 672 (2003)), and we granted review.

ANALYSIS

A. SUMMARY

¶ 9 Our review is de novo. State v. Johnston, 100 Wash.App. 126, 137, 996 P.2d 629 (2000); State v. Knutson, 88 Wash.App. 677, 680, 946 P.2d 789 (1997). The State may bring (and a jury may consider) multiple charges arising from the same criminal conduct in a single proceeding. State v. Michielli, 132 Wash.2d 229, 238-39, 937 P.2d 587 (1997). Courts may not, however, enter multiple convictions for the same offense without offending double jeopardy. State v. Vladovic, 99 Wash.2d 413, 422, 662 P.2d 853 (1983) (citing Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981)).¹ "Where a defendant's act supports charges under two criminal statutes, a court weighing a double jeopardy challenge must determine whether, in light of legislative intent, the charged crimes constitute the same offense." In re Pers. Restraint of Orange, 152 Wash.2d 795, 815, 100 P.3d 291 (2004). The legislature has the power to define offenses and set punishments. See State v. Calle, 125 Wash.2d 769, 777-78, 888 P.2d 155 (1995)

(rape and incest are separate offenses).

¶ 10 The dispositive question today is whether, and if so, when, the legislature intended to punish separately both a robbery elevated to first degree by an assault, and the assault itself. Cf. Garrett v. United States, 471 U.S. 773, 779, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985)

(legislature has the power to criminalize every step leading to a greater crime, and the crime itself) (citing Albrecht v. United States, 273 U.S. 1, 11, 47 S.Ct. 250, 71 L.Ed. 505 (1927)); Whalen v. United States, 445 U.S. 684, 688-89, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). If the legislature authorized cumulative punishments for both crimes, then double jeopardy is not offended. See generally William S. McAninch, Unfolding the Law of Double Jeopardy, 44 S.C.L.REV. 411, 483-84 (1993).²

¶ 11 Because the question largely turns on what the legislature intended, we first consider any express or implicit legislative intent. Sometimes the legislative intent is clear, as when it explicitly provides that burglary shall be punished separately from any related crime. RCW 9A.52.050. Sometimes, there is sufficient evidence of legislative intent that we are confident concluding that the legislature intended to punish two offenses arising out of the same bad act separately without more analysis. E.g., Calle, 125 Wash.2d at 777-78,

888 P.2d 155 (rape and incest are separate offenses).

¶ 12 Second, if the legislative intent is not clear, we may turn to the Blockburger test. See Calle, 125 Wash.2d at 777-78,

888 P.2d 155; Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). If each crime contains an element that the other does not, we presume that the crimes are not the same offense for double jeopardy purposes. Calle, 125 Wash.2d at 777,

888 P.2d 155; Blockburger, 284 U.S. at 304,

52 S.Ct. 180 (establishing "same evidence" or "same elements" test); State v. Reiff, 14 Wash. 664, 667, 45 P. 318 (1896) (double jeopardy violated when "`the evidence required to support a conviction [of one crime] would have been sufficient to warrant a conviction upon the other'") (quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871)).

¶ 13 When applying the Blockburger test, we do not consider the elements of the crime on an abstract level. "'[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offense or only one, is whether each provision requires proof of a fact which the other does not.'" Orange, 152 Wash.2d at 817, 100 P.3d 291 (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. 180 (citing Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 55 L.Ed. 489 (1911))). However, the Blockburger presumption may be rebutted by other evidence of legislative intent. Calle, 125 Wash.2d at 778, 888 P.2d 155.

¶ 14 Third, if applicable, the merger doctrine is another aid in determining legislative intent, even when two crimes have formally different elements. Under the merger doctrine, when the degree of one offense is raised by conduct separately criminalized by the legislature, we presume the legislature intended to punish both offenses through a greater sentence for the greater crime. Vladovic, 99 Wash.2d at 419, 662 P.2d 853.

¶ 15 Finally, even if on an abstract level two convictions appear to be for the same offense or for charges that would merge, if there is an independent purpose or effect to each, they may be punished as separate offenses. State v. Frohs, 83 Wash.App. 803, 807, 924 P.2d 384 (1996) (citing State v. Johnson, 92 Wash.2d 671, 680, 600 P.2d 1249 (1979)).

B. APPLICATION

1. Do the statutes authorize separate punishments?

¶ 16 Again, if the statutes explicitly authorize separate punishments, then separate convictions do not offend double jeopardy. See Calle, 125 Wash.2d at 776,

888 P.2d 155; In re...