State v. Harkcom
| Decision Date | 02 November 2009 |
| Docket Number | 63835-1-I |
| Parties | STATE OF WASHINGTON, Respondent, v. JESSE LEE HARKCOM, Appellant. |
| Court | Washington Court of Appeals |
Unpublished Opinion
A jury convicted Jesse Harkcom of first degree robbery while armed with a firearm, second degree assault while armed with a firearm, drive-by shooting, and first degree unlawful possession of a firearm. Harkcom appeals, contending that (1) convictions for first degree robbery with a firearm enhancement and drive-by shooting violate double jeopardy (2) the sentencing court abused its discretion by finding that first degree robbery and drive-by shooting do not constitute the same criminal conduct, (3) defense counsel was ineffective for failing to object to inadmissible evidence and to raise same criminal conduct at sentencing, and (4) the trial court violated his constitutional right to a unanimous jury when it failed to properly instruct the reconstituted jury. He also raises other issues in a pro se statement of additional grounds. Because the trial court erred in failing to properly instruct the jury on the record when an alternate juror was seated after deliberations had begun, we reverse and remand for a new trial.
At trial, witnesses testified to the following events. On January 22, 2008, Gene Blaney was at the West Side Tavern in Olympia because he had received a call from Kalin Hollingberry, a friend of Blaney's former girl friend who wanted to meet to resolve past differences. Hollingberry and two other men met Blaney at the West Side Tavern and the four left in Hollingberry's car. Blaney sat on the passenger side in the rear with Hollingberry next to him. Jesse Harkcom was in the front passenger seat and an unidentified man drove. The four men drove to a nearby bowling alley, the West Side Lanes, to "have a couple beers." 1 Report of Proceedings (RP) (June 3, 2008) at 41.
After parking at the bowling alley, Harkcom got out of the car and pulled a gun from his pants. Blaney attempted to open the car door, but Harkcom slammed it shut and forced him back inside. After a brief struggle, Blaney forced his way out of the car.
Harkcom pointed the gun at Blaney and demanded that Blaney empty his pockets. Blaney refused and Harkcom threatened to shoot Blaney if he did not comply. Harkcom then pointed the gun at Blaney's knees and threatened to shoot him in the knees if he did not empty his pockets. Blaney again refused and Harkcom "aimed the gun towards an aside and gave [Blaney] a warning shot." 1 RP (June 3, 2008) at 47. He described the shot as "just missing" and as 1 RP (June 3, 2008) at 56.
Harkcom aimed the gun at Blaney's head and threatened to kill Blaney if he did not empty his pockets. When Blaney did not comply, Harkcom "shot to the side of [Blaney's] head." 1 RP (June 3, 2008) at 47. Blaney said Harkcom fired both shots in an attempt to scare him. Blaney eventually gave Harkcom his jacket, and Harkcom left when another car arrived. Shortly after, two employees of the West Side Lanes came out to investigate the gunshots.
At trial, in its first amended information, the State charged Harkcom with first degree kidnapping while armed with a deadly weapon (firearm), first degree robbery while armed with a deadly weapon (firearm), first degree extortion while armed with a deadly weapon (firearm), second degree assault while armed with a deadly weapon (firearm), drive-by shooting, and unlawful possession of a firearm.[1] Trial commenced on June 3, 2008, and jury deliberations began on June 4 2008. On the second day of deliberations, June 5, juror 12 informed the court bailiff that she recognized Harkcom from her prior jury duty service. After questioning the juror and discussion with counsel, on the record, the court and counsel agreed that the juror was mistaken, but that she should be excused and replaced by the alternate juror. With counsel's agreement, the court directed the bailiff to instruct the reconstituted jury to begin deliberating anew.
On June 5, the reconstituted jury convicted Harkcom of first degree robbery, second degree assault, drive-by shooting, and first degree unlawful possession of a firearm. It acquitted Harkcom of first degree kidnapping and found that Harkcom committed the robbery and assault while armed with a firearm. After hearing argument, the court found that the convictions for first degree robbery and second degree assault merged, but that the robbery and drive-by shooting convictions did not.
The trial court then sentenced Harkcom to 150 months for first degree robbery, with a firearm enhancement of 60 months, for a total of 210 months. The court imposed a sentence of 116 months for drive-by shooting, and 89 months for first degree unlawful possession of a firearm, each to be served concurrently to the first degree robbery sentence. This appeal followed.
Harkcom first contends that his convictions for first degree robbery and drive-by shooting violate double jeopardy. The State counters that since both offenses contain an element that the other does not, there is no double jeopardy violation.
The Fifth Amendment to the United States Constitution and article I, section 9 of the Washington Constitution provide protections against double jeopardy. Washington's constitutional protections are coextensive with those provided by the federal constitution. State v. Womac, 160 Wn.2d 643, 650, 160 P.3d 40 (2007). Double jeopardy is a question of law reviewed de novo. Womac, 160 Wn. 2d at 649. Double jeopardy protections preclude "'(1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense imposed in the same proceeding.'" Womac, 160 Wn. 2d at 650 (quoting In re Pers. Restraint of Percer, 150 Wn.2d 41, 48–49, 75 P.3d 488 (2003)). Under the third prong, conviction alone constitutes punishment. Womac, 160 Wn. 2d at 656–57. The legislature may, commensurate with constitutional restraints, allow for multiple punishments for a single course of conduct. State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995). As such, we first ask whether the legislature has expressly authorized multiple punishments. Calle, 125 Wn.2d at 776; State v. Freeman, 153 Wn.2d 765, 771, 108 P.2d 753 (2005). If the answer is no, we then engage in statutory construction to determine whether the defendant can be convicted of two offenses. See Calle, 125 Wn.2d at 776 (). Since the State here concedes that the legislature has not clearly authorized multiple punishments, we proceed directly to statutory construction.
Washington uses the "same evidence" test of statutory construction to determine if multiple punishments are authorized. Womac, 160 Wn.2d at 652; Calle, 125 Wn.2d at 777. This test is similar to the federal test established in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Womac, 160 Wn.2d at 652. The "same evidence" test provides that if each offense contains an element that the other does not, the offenses are different and multiple punishments and convictions are permitted. Womac, 160 Wn.2d at 652; Calle, 125 Wn.2d at 777. Courts examine the elements as defined by statute. State v. Vladovic, 99 Wn.2d 413, 423, 662 P.2d 853 (1983).
Harkcom was convicted of first degree robbery in violation of RCW 9A.56.200(1). That section defines the offense by reference to the underlying crime of robbery. RCW 9A.56.190 defines robbery.
Both offenses contain an element that the other does not. Robbery requires the unlawful taking of personal property. Drive-by shooting does not. Drive-by shooting requires the reckless discharge of a firearm that creates a risk of death or serious physical injury where the discharge is from or in the immediate area of a motor vehicle used to transport the defendant. State v. Pastrana, 94 Wn.App. 463, 477, 972 P.2d 557 (1999); State v. Rivera, 85 Wn.App. 296, 300, 932 P.2d 701 (1997). Robbery does not. The offenses, as defined in the statute, each plainly require proof of elements that the other does not. Under the same evidence test, the offenses are thus not the same and Harkcom's convictions for both do not violate double jeopardy.
Harkcom next asserts that enhancing a sentence based on a fact that is also an element of the underlying offense violates double jeopardy. Specifically, he argues that his conviction for first degree robbery based on committing that offense with a firearm and imposing a firearm enhancement for the same offense violates his double jeopardy rights.
But we addressed Harkcom's contention in State v Tessema, 139 Wn.App. 483, 162 P.3d 420 (2007) and State v. Nguyen, 134 Wn.App. 863, 142 P.3d 1117 (...
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