State v. Gocken

Decision Date22 June 1995
Docket NumberNos. 61482-2,61603-5,s. 61482-2
Citation127 Wn.2d 95,896 P.2d 1267
CourtWashington Supreme Court
PartiesThe STATE of Washington, Respondent, v. Frederick Leslie GOCKEN, Petitioner. The STATE of Washington, Respondent, v. Mistie B. CRISLER, Petitioner.

Joseph Cooney Legal Services, Leslie Loukkola and Frank A. Malone, Spokane, for petitioner Gocken.

Eric M. Christianson, Wenatchee, for petitioner Crisler.

James R. Sweetser, Spokane County Prosecutor, Kevin M. Korsmo, Deputy County Prosecutor, Spokane, and Steven M. Clem, Douglas County Prosecutor and Mr. Frank W. Jenny, Deputy County Prosecutor, Waterville, for respondent.

Katherine S. Knox, Cheney, amicus curiae for petitioners on behalf of Washington Defender Ass'n.

GUY, Justice.

The question before the court is whether the double jeopardy clause of the Washington State Constitution, art. 1, § 9, extends broader individual rights to a criminal defendant than the double jeopardy clause of the United States Constitution, amend. 5. We hold it does not.

BACKGROUND
State v. Gocken

On October 28, 1990, at approximately 2 a.m., Mr. Frederick L. Gocken placed a license plate on a vehicle parked at the Shamrock Car Wash in the city of Spokane. He also handed what appeared to be cash to an unidentified person. Several people observed this transaction and reported their observations to the Spokane Police Department. Mr. Gocken left the car wash, stopping a short distance away when the vehicle he was driving overheated. Mr. Gocken was at the rear of the vehicle when several police officers contacted him regarding the citizens' reports.

The police officers asked Mr. Gocken for his identification and vehicle registration. Mr. Gocken informed the police officers that his identification and a gun were inside the vehicle. The police officers asked Mr. Gocken if they could enter the vehicle and retrieve his identification. Mr. Gocken denied this request.

A police officer standing next to the vehicle observed through the driver's side window a marijuana pipe on the driver's side floorboard. Mr. Gocken was arrested for possession of drug paraphernalia in violation of RCW 69.50.412(1). 1 The police officers searched the vehicle incident to the arrest and recovered a handgun, a tupperware container containing marijuana, a plastic bag containing marijuana, a marijuana grow operation ledger, and cash totaling $1,355. Mr. Gocken was then arrested on a second charge--possession of a controlled substance with intent to deliver in violation of RCW 69.50.401(a). 2

Mr. Gocken pled guilty in district court to the misdemeanor charge of possession of drug paraphernalia. Mr. Gocken then filed in Spokane County Superior Court a motion to dismiss the felony possession charge, claiming double jeopardy barred its prosecution. The Superior Court agreed with Mr. Gocken and dismissed the felony possession charge. The Court of Appeals reversed. State v. Gocken, 72 Wash.App. 908, 910, 866 P.2d 694 (1994). We granted Mr. Gocken's petition for review.

State v. Crisler

On December 9, 1991, Ms. Mistie B. Crisler and another woman entered a Lamonts store in the city of East Wenatchee. After some discussion, each woman grabbed an armload of clothing and ran out of the store. Lamonts personnel pursued. Upon chase, both women dropped the merchandise they were carrying. The clothing was eventually collected and counted. The combined value of the stolen merchandise exceeded $250.

Ms. Crisler was charged by the City of East Wenatchee with criminal conspiracy in violation of RCW 9A.28.040(1). 3 On December 10, 1991, Ms. Crisler pled guilty in district court to the misdemeanor charge of criminal conspiracy. The court accepted her plea and entered a finding of guilt. Ms. Crisler was not represented by counsel.

On December 11, 1991, 1 day after her plea of guilty to criminal conspiracy, Ms. Crisler was charged by the County of Douglas with second degree theft, a felony, in violation of former RCW 9A.56.040. 4 The criminal conspiracy charge and the theft charge arose from the same incident at Lamonts. The East Wenatchee prosecutor continued sentencing on the conspiracy conviction until the theft charge was resolved.

Ms. Crisler secured legal counsel and proceeded to trial. At trial, the Superior Court gave an accomplice instruction, WPIC 10.51, based on the testimony that either Ms. Crisler or the other woman was heard to say, "Let's go", immediately prior to fleeing the store. On March 11, 1992, a jury found Ms. Crisler guilty of second degree theft.

On March 23, 1992, Ms. Crisler moved to dismiss the theft conviction, claiming double jeopardy barred its prosecution. The Superior Court denied the motion.

On April 1, 1992, Ms. Crisler was sentenced for her theft conviction. She received a 15-day jail sentence with credit given for 15 days already served. On April 15, 1992, the East Wenatchee Prosecuting Attorney dismissed the conspiracy conviction.

Ms. Crisler appealed the Superior Court's ruling denying her claim of double jeopardy to the Court of Appeals. The Court of Appeals affirmed. State v. Crisler, 73 Wash.App 219, 224, 868 P.2d 204 (1994). We granted Ms. Crisler's petition for review and consolidated her case with Mr. Gocken's pursuant to RAP 3.3(b).

ISSUE

We accepted review to determine whether the double jeopardy clause of the Washington State Constitution, art. 1, § 9, extends broader individual rights to a criminal defendant than the double jeopardy clause of the United States Constitution, amend. 5.

ANALYSIS
I

The double jeopardy clause of the United States Constitution guarantees that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb". U.S. Const. amend. 5. The double jeopardy clause of the Washington State Constitution guarantees that "No person shall ... be twice put in jeopardy for the same offense." Const. art. 1, § 9. The Fifth Amendment applies to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969).

The double jeopardy clause of the Fifth Amendment has been construed to encompass three separate constitutional protections:

It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.

(Footnotes omitted.) North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989).

The Blockburger Test

In both the multiple punishment and successive prosecution contexts, the Supreme Court has ruled double jeopardy applies if the two offenses for which the defendant is punished or tried cannot survive the "same elements" test. United States v. Dixon, 509 U.S. 688, ----, 113 S.Ct. 2849, 2856, 125 L.Ed.2d 556, 568 (1993).

The "same elements" test, commonly referred to as the Blockburger test, examines whether each offense contains an element not contained in the other.

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.

(Italics ours.) Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); Dixon, 509 U.S. at ----, 113 S.Ct. at 2856, 125 L.Ed.2d at 568.

The Blockburger test was the standard for federal double jeopardy analysis for almost 60 years, until the Supreme Court decided Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). In Grady, the Supreme Court ruled a subsequent prosecution must satisfy a 2-part test that included the Blockburger test and a "same conduct" test to avoid double jeopardy. The Grady Court outlined the second part of the "same conduct" test when it wrote:

[T]he Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.

(Italics ours.) Grady, 495 U.S. at 521, 110 S.Ct. at 2093. The "same conduct" test announced in Grady was overruled 3 years later in Dixon.

We have concluded, however, that Grady must be overruled. Unlike Blockburger analysis, whose definition of what prevents two crimes from being the "same offence," U.S. Const, Amdt 5, has deep historical roots and has been accepted in numerous precedents of this Court, Grady lacks constitutional roots. The "same-conduct" rule it announced is wholly inconsistent with earlier Supreme Court precedent and with the clear common-law understanding of double jeopardy.

Dixon, 509 U.S. at ----, 113 S.Ct. at 2860, 125 L.Ed.2d at 573. The Blockburger test is now the exclusive standard for reviewing whether successive prosecutions violate the double jeopardy clause of the Fifth Amendment.

Gunwall Analysis

Petitioner Gocken contends the double jeopardy clause of Const. art. 1, § 9 provides broader constitutional protection to a criminal defendant than the double jeopardy clause of the Fifth Amendment. Mr. Gocken requests we adopt and apply the Grady "same conduct" test, not the Blockburger test, when reviewing questions of successive prosecutions under article 1, section 9. Whether the Washington State Constitution provides broader constitutional protection than the United States Constitution is determined by reference to the six nonexclusive factors enumerated in State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986). Mr. Gocken properly raised and briefed the six Gunwall factors. See State v. Wethered, 110 Wash.2d 466, 472-73, 755 P.2d 797 (1988). 5

The first and second Gunwall factors require this court to evaluate the textual...

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