State v. Johnson
| Decision Date | 15 December 1983 |
| Docket Number | 49138-1,49144-5 and 49145-3,Nos. 49128-3,s. 49128-3 |
| Citation | 100 Wn.2d 607,674 P.2d 145 |
| Parties | The STATE of Washington, Respondent, v. Mark Anthony JOHNSON, Petitioner. The STATE of Washington, Respondent, v. Daniel Joseph MacREADY, Petitioner. The STATE of Washington, Respondent, v. Hilton CHELLY, Defendant, Phillip Lee Stewart, Petitioner. The STATE of Washington, Respondent, v. Colin John KILPATRICK, a/k/a John Frederick Haffner, Petitioner. |
| Court | Washington Supreme Court |
Stephanie Searing, Eastside Defender Association, Seattle, for johnson.
Michael Filipovic, Seattle-King County Public Defender, Seattle, for MacReady, Stewart and Kilpatrick.
Norman K. Maleng, King County Prosecutor, Deborah Phillips, Deputy County Prosecutor, Seattle, for respondent.
These four consolidated cases present two main issues, both regarding the burglary statute. The first is the constitutionality of an instruction given in the language of RCW 9A.52.040, which allows the trier of fact to presume (or infer) intent to commit a crime from unlawful entry. 1 The second issue is whether the State in a burglary prosecution must charge and prove the crime or crimes the defendant allegedly intended to commit. 2 We reach the same basic conclusion as has our Committee on Jury Instructions and hold that an instruction given in the language of RCW 9A.52.040 is not constitutionally permissible unless the defendant presents some evidence of intent in his case. We also hold, in light of our recent decision in State v. Bonds, 98 Wash.2d 1, 653 P.2d 1024 (1982), that in a burglary prosecution the information must specify and the instructions must specify and define the crime or crimes the defendant allegedly intended to commit. The jury need not agree on which crime was intended, however. Error exists in all four cases here, but is harmless in three.
Each defendant was charged with and convicted of burglary. The Court of Appeals affirmed each conviction ( see State v. Johnson, 32 Wash.App. 1037 (1982); State v. MacReady, 32 Wash.App. 928, 651 P.2d 752 (1982); State v. Chelly, 32 Wash.App. 916, 651 P.2d 759 (1982) (defendant Stewart); State v. Kilpatrick, 32 Wash.App. 1048 (1982)) and we granted defendants' petitions for review. The cases arose from independent sets of facts which are set forth separately.
On February 1, 1980, a burglar entered a Seattle apartment by breaking a window. A tenant in another apartment saw defendant Mark Johnson in the vicinity after hearing the glass break. That tenant called the police who a few minutes later apprehended Johnson several blocks away. Johnson twice fled before police were able to finally arrest him.
Johnson had in his possession a pair of red cloth gloves, a gold-plated wristwatch, and a silver certificate 10-dollar bill. Fibers from the gloves matched fibers found amidst the broken glass at the burglarized apartment. The watch and silver certificate belonged to one of the tenants.
One of the jury instructions given by the court was the statutory presumption 3 of intent provided for by RCW 9A.52.040.
Any person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein, unless such entering or remaining shall be explained by evidence satisfactory to you to have been made without criminal intent.
Clerk's Papers, at 16. Johnson objected to this instruction but solely on the ground that it constituted "a comment on the defendant's right to remain silent." Report of Proceedings, April 8, 1980, at 97.
After Johnson's conviction, the State indicated that it intended to institute a habitual offender proceeding. The State sought a continuance, however, because it believed it might not be able to rely upon a conviction then on appeal. The trial court granted the stay but on appeal we granted discretionary review and transferred the case to the Court of Appeals which then vacated the stay and remanded to the trial court, after affirming the prior conviction. The trial court then dismissed the habitual offender proceeding, on several grounds, and on April 29, 1981 sentenced Johnson, 13 months after his conviction.
Early on the morning of July 29, 1979, the residents of the Brister house discovered defendant Daniel MacReady asleep at the bottom of the living room stairwell. Viola Brister called the police while her children locked themselves in the bedroom. Just as the police arrived, MacReady, apparently having awakened, ran out of the house but was quickly apprehended. He was moderately intoxicated and had in his pocket a Space Needle paperweight, worth only $1.50, which belonged to the Bristers.
MacReady had apparently entered the house through a basement window he had broken. It was on the sill of this window where the paperweight was kept. Nothing else in the house was missing or damaged. MacReady knew the Brister daughter, a friend of his sister, and had driven her home once or twice.
The information charged that MacReady entered the Brister house with intent to commit a crime, but did not specify the crime. The jury was instructed in similar language and the term "crime" was not defined. MacReady objected to neither the sufficiency of the information nor the instructions; however, he did except to the same presumption instruction given in Johnson's trial (see page 149) on the ground that it deprived him of his right to have the State prove every element of the charge beyond a reasonable doubt.
Shortly after 2 a.m. on February 13, 1980, Yuen Chun Gee saw three men loading cartons from a store into a black and blue Lincoln Continental parked near a broken window of the store. Gee called the police but was unable to describe the three men other than to note that they were black.
While Gee was calling and the burglary was still in process, the store's owner, Ken Wong, was returning to check on the store. As he approached, he heard someone yell that he was coming and a light blue Pontiac pulled out, almost hitting Wong's car. Wong also was unable to describe or identify any of the culprits.
About 30 minutes passed while Gee called and the police arrived in the area. Officer Patrick Moriarty spotted defendant Phillip Stewart and his codefendants Hilton Chelly and John Frost in a car which roughly matched Gee's description. Upon spotting the car, which was in a parking lot near the burglarized store, Moriarty approached to investigate. Inside the car he saw cartons of beer and cigarettes and so he placed the three occupants under arrest. The men protested their innocence, though they were cooperative. At trial, Chelly testified that a man had driven up beside them on the street and offered to sell them some alcohol. They had agreed and paid $25 or $30 for the cartons.
Other than to state that "[t]heft is a crime" (Clerk's Papers, at 17), the information and instructions failed to specify or define the crime or crimes Stewart and his codefendants allegedly intended to commit when they allegedly entered the store. Yet Stewart's only exception to the instructions was to the trial court's failure to give a lesser included offense instruction on the offense of possession of stolen property.
Late on the evening of February 23, 1981, police, responding to a neighbor's call, discovered defendant Colin Kilpatrick in the furnace room of the office of Dr. Vernon Killingstad, a dentist. Though Kilpatrick denied it, police testified that he was wearing one leather glove and one surgical glove which were both introduced into evidence. A search of Kilpatrick's person produced a substantial amount of precious metals of the sort used by Killingstad in his lab. Kilpatrick also had a classified newspaper ad soliciting buyers of gold and silver.
Kilpatrick testified that he is in the business of buying and selling gold. Earlier on the day in question, he had met a man who had offered to buy his gold; however, he did not know the man nor could he describe him. This man had allegedly told Kilpatrick to meet him at Killingstad's office. Kilpatrick claimed he had found the back door unlocked and gone in to wait but had become apprehensive when the police arrived and so had gone into the furnace room.
As in Stewart's and MacReady's trials, the information and instructions did not specify or define the crime or crimes Kilpatrick allegedly intended to commit when he entered the building, though Kilpatrick did not object to this omission.
Johnson and MacReady both claim that the trial courts erred in giving the instruction on presumption of intent which is set forth above, at page 149. In particular, they argue that use of such an instruction violated their constitutional right to have the State prove them guilty beyond a reasonable doubt. See Sandstrom v. Montana, 442 U.S. 510, 520, 99 S.Ct. 2450, 2457, 61 L.Ed.2d 39 (1979).
Initially, the State argues that Johnson has failed to preserve this claim. The State correctly points out that an assignment of error to instructions will generally not be considered if not within the scope of an exception taken at trial. See, e.g., Ralston v. Vessey, 43 Wash.2d 76, 80, 260 P.2d 324 (1953). Here, Johnson's exception was premised solely on the ground that the instruction infringed upon his right to remain silent, a contention he has now apparently dropped.
Nonetheless, this does not bar Johnson from raising his new argument. Constitutional error may be raised for the first time on appeal (RAP 2.5(a)) and this is particularly true of error affecting such fundamental aspects of due process as the presumption of innocence and the right to have the State prove every element of the charge beyond a reasonable doubt. State v. McHenry, 88 Wash.2d 211, 213, 558 P.2d 188 (1977). The error assigned here involves precisely such principles. See Sandstrom v. Montana, supra at 520, 99 S.Ct. at 2457.
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