State v. Greco, 12015-1-II
| Decision Date | 14 March 1990 |
| Docket Number | No. 12015-1-II,12015-1-II |
| Citation | 57 Wn.App. 196,787 P.2d 940 |
| Parties | The STATE of Washington, Respondent, v. Richard A. GRECO, Appellant. |
| Court | Washington Court of Appeals |
Monte E. Hester, Wayne C. Fricke, Law Offices of Monte E. Hester, Tacoma, for appellant.
Gregory P. Canova, Sp. Deputy Pros. Atty., Seattle, Chris Quinn-Brintnall, Deputy Pros. Atty., Tacoma, for respondent.
Richard Greco, former Pierce County Auditor, appeals his Pierce County bribery and official misconduct convictions. We affirm the misconduct conviction. Because the bribery findings of fact are inadequate, we vacate those convictions and remand for further findings.
A special inquiry, attended by then Pierce County Prosecuting Attorney William Griffies, was held to gather evidence regarding allegations of Greco's misconduct. After the inquiry the State charged Greco with several counts of bribery under RCW 9A.68.010(1)(b) and official misconduct under RCW 42.20.010(1) & (2). The State alleged that Greco accepted bribes for awarding vehicle licensing subagencies to particular persons. Greco also was charged with providing county employees as messengers for an agency in return for payments which he pocketed, a violation of RCW 42.20.010(3).
The counts involved three agencies and five individuals: Walter Robb; Howard Forbes, and Dena and David McCallum (the Forbes/McCallum agency); and Mead McDonald. The court, sitting without a jury, convicted Greco of nine bribery counts and one official misconduct count. He was acquitted of the remaining counts.
Bribery counts III (1983-84) and IV (1985) involved Robb. Robb believed that Greco would close agencies that did not contribute monies for his campaign fund or as Christmas gifts. Robb paid Greco $400 in 1984 after having trouble with Greco's office and receiving Greco's call that Greco had not received his 1983 payment. Robb also paid Greco $500 in 1985.
Bribery counts VIII (1982), IX (1983), and XI (1985) involved the Forbes/McCallum agency. In 1982 Forbes paid Greco $250, understanding that the payment was to dissuade Greco from permitting the establishment of competing agencies. Afterward, Greco called Forbes and said "Howard you are short." Forbes then paid Greco an additional $250. Forbes also paid $500 in 1983.
Greco told Dena McCallum that the arrangement was $500 for the yearly payment and $1500 for messenger service. Her agency paid Greco $2,000 in 1985: a $500 Christmas payment and $1,500 for messenger service. The agency made the Christmas payment because Greco talked of authorizing a competing agency. A county employee testified that he collected paperwork from the agency. Greco returned the $2,000, saying he did not need it just then, but later asked for $500, which David McCallum paid. The court found Greco guilty of official misconduct (Count XII) for using a person in his employ for his personal benefit, in violation of RCW 42.20.010(3).
Bribery counts XIII (1981), XIV (1982), XV (1984), and XVI (1985) involved McDonald. McDonald paid unknown amounts in 1981 and 1982, $400 in 1984, and $500 in 1985 hoping to prevent closure of his agency or establishment of a competing agency. McDonald increased the 1984 payment because Greco told him that he, McDonald, had missed the 1983 payment.
SPECIAL INQUIRY PROCEEDING.
The first issue is whether Prosecutor Griffies was not authorized to participate in the special inquiry because of a conflict of interest. Greco argues that because of Griffies' unauthorized appearance the information must be set aside, relying upon RCW 10.40.070(3). We review de novo the trial court's decision not to disqualify the prosecutor. See State v. Stenger, 111 Wash.2d 516, 521-22, 760 P.2d 357 (1988).
For a conflict of interest to arise under RPC 1.9, the prosecutor must have "previously personally represented or been consulted professionally by an accused with respect to the offense charged" or closely related matters. Stenger, 111 Wash.2d at 520, 760 P.2d 357. In Stenger the prosecutor was disqualified from prosecuting the defendant because he had represented him in a previous criminal action and the court believed that information learned in the previous representation might influence the prosecutor's discretionary decision of whether to seek the death penalty. Stenger, 111 Wash.2d at 521, 760 P.2d 357.
The prosecutor is the legal advisor to all county officers. RCW 36.27.020. As such, Griffies' office represented Greco as the county auditor in numerous cases. However, the record is bereft of any evidence that the office represented Greco in his personal affairs. Because he was not privy to any information personal to Greco, Griffies could not be said to have used improperly any such information in prosecuting Greco. Neither is any information Griffies obtained in the previous cases shown to be interwoven with the facts of this case. Thus, Griffies did not have a conflict of interest.
IF GRIFFIES WAS NOT AUTHORIZED TO ATTEND THE SPECIAL
Even if Griffies was not authorized to attend the special inquiry, the information need not be quashed. RCW 10.27.080 addresses who may attend both grand juries and special inquiry courts. However, RCW 10.40.070(3), on which Greco relies, states only that indictments must be set aside when an unauthorized person attended the proceeding. The statute does not address special inquiries, or speak to informations.
Under the rules of statutory construction, the specific inclusion of one item in a category excludes implication of other items of the same category (expressio unius est exclusio alterius ). State v. Sommerville, 111 Wash.2d 524, 535, 760 P.2d 932 (1988). By including grand juries, but not special inquiries, the Legislature implicitly chose not to invalidate special inquiry proceedings because of the attendance of unauthorized persons. We decline to extend the invalidation.
CONSTITUTIONALITY OF RCW 9A.68.010(1)(b).
The next issue is whether 9A.68.010(1)(b) 1, the bribery statute, is overbroad. A statute is overbroad if it punishes innocent or constitutionally-protected activity. State v. O'Neill, 103 Wash.2d 853, 858, 700 P.2d 711 (1985). The O'Neill court found that an implied element of corrupt intent was required to uphold RCW 9A.68.010(1)(a). O'Neill, 103 Wash.2d at 859, 700 P.2d 711. The court then also found that the element was in fact implied, because the Legislature is presumed not to have intended to enact an unjust or unconstitutional law. O'Neill, at 859, 700 P.2d 711. It is equally reasonable to imply corrupt intent in RCW 9A.68.010(1)(b). The only difference between (1)(a) and (b) is that the former refers to the giver of the bribe and the latter refers to the taker. We see no reason to differentiate between the two sections insofar as the mental element is concerned. Finding that the corrupt intent element is implied in the statute ensures that protected activity will not be punished; with the necessary element thus supplied, the statute is not overbroad.
We turn next to Greco's contention that the statute is vague because it fails to define "agreement or understanding." " 'A statute is void for vagueness under the Fourteenth Amendment if it is framed in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application.' " O'Neill, 103 Wash.2d at 859, 700 P.2d 711. In our view, a person of common intelligence would conclude that "agreement or understanding" as used in the statute means "mutual agreement," a definition cited by Greco in his brief. The statute is not impermissibly vague.
EQUAL PROTECTION.
Greco argues that the State's unbridled discretion in deciding whether to charge a felony under RCW 9A.68.010(1)(b) (bribery) or a misdemeanor under RCW 42.20.010(1) and (2) (official misconduct), denied him equal protection. The equal protection guarantee is violated if "the elements of the statutes prohibiting the behavior [are] 'the same or essentially the same.' " State v. Sherman, 98 Wash.2d 53, 61, 653 P.2d 612 (1982). It would be unreasonable and inequitable to allow the prosecutor to seek and have imposed varying degrees of punishment for the same criminal acts. State v. Ensminger, 77 Wash.2d 535, 536, 463 P.2d 612 (1970). However, equal protection is not violated where the crimes contain different elements. In re Taylor, 105 Wash.2d 67, 68, 711 P.2d 345 (1985).
The State did not have unfettered discretion in charging Greco. RCW 42.20.010(1) and (2) do not include the corrupt intent or agreement elements contained in RCW 9A.68.010(1)(b). Because the crimes contain different elements, charging Greco under the bribery statute did not deny him equal protection.
Greco argues that he may be charged only with official misconduct under RCW 42.20.010(3)--which he labels the special statute--and that he may not be charged with bribery under RCW 9A.68.010(1)(b)--which he labels the general statute. If the statutes are concurrent, the special statute applies to the exclusion of the general. State v. Cann, 92 Wash.2d 193, 197, 595 P.2d 912 (1979). Statutes are concurrent if "the general statute will be violated in each instance where the special statute has been violated." State v. Shriner, 101 Wash.2d 576, 580, 681 P.2d 237 (1984). This rule applies even though the special statute includes elements not included in the general statute. State v. Danforth, 97 Wash.2d 255, 257-59, 643 P.2d 882 (1982). Any other rule would frustrate the legislative intent to treat the subset of activity (the crime defined by the special statute) apart from the general scheme. Danforth, 97 Wash.2d at 257-59, 643 P.2d 882.
The statutes in question here are not concurrent. RCW 9A.68.010(1)(b) requires...
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