State v. Johnson
| Decision Date | 19 August 2002 |
| Docket Number | No. 47176-7-I.,47176-7-I. |
| Citation | 113 Wash.App. 482,54 P.3d 155 |
| Parties | STATE of Washington, Respondent, v. Anthony Paul JOHNSON, Appellant. |
| Court | Washington Court of Appeals |
Anthony P. Johnson, pro se.
Wash.App. Project, Nancy Collins, Seattle, WA, for Appellant.
King County Prosecuting Atty., Donald James Raz, Deputy, Seattle, WA, for Respondent.
Anthony Paul Johnson appeals his conviction of second degree murder, arguing that the trial court violated double jeopardy. But the court found that alternate charges of intentional murder and felony murder constituted a single offense and properly entered judgment and sentenced Johnson for only one crime. Thus there were no multiple punishments violating double jeopardy. Johnson's pro se arguments also fail. We affirm.
Johnson and Michael Ruff were friends. Ruff lived with his mother Essie Winters and stepfather Adrian Winters. One evening, while Essie was watching television in her living room, she overheard Ruff in another room, denying some sort of accusation on the telephone. Shortly afterwards, someone came to the front door and Essie heard the sounds of a struggle and more denials from Ruff, but did not see anyone. The sounds quickly moved closer to the door to the living room, and Essie saw a spray of blood in the entry hall. Ruff ran into the living room, holding his neck and spattering the telephone with blood as he and Essie tried to call 911. Ruff told her that "An-dog" had hurt him. Johnson's nickname was "Ant-dog."
Adrian Winters, awakened by the noise, came into the living room and tried to stop Ruff's bleeding with a towel. When they had difficulty communicating with the 911 operator, Ruff ran to his neighbor David Wilkins' home and pounded on the door. Before Wilkins got to his door, Ruff ran into the street, where Wilkins then found him sitting. While they waited for medics, Ruff talked about Jesus and said he was "ready to go." Ruff also said that Johnson had thought that he was messing with Johnson's car and stabbed Ruff. Police arrived and Ruff gave them Johnson's name and address and described Johnson's Mazda RX-7. Medics transported Ruff to the hospital, but doctors were unable to stop the bleeding from Ruff's seven knife wounds and he died.
Police were initially unable to find Johnson at his home but after approximately two hours, learned he had returned. When they met him, he appeared to be very clean, as if he had bathed, and his clothes appeared very clean. Johnson made several spontaneous statements after his arrest. He had thought Ruff was his friend; Ruff only pretended to like him and was envious; Ruff was supposed to work on his car; and three lug nuts on a wheel had been loosened. Johnson also asked why anyone would want to hurt him.
The State charged Johnson with one count of first degree premeditated murder and a second, alternative count of second degree felony murder. Each count also contained a deadly weapon allegation. The defense presented a defense of alibi through testimony from one of Johnson's friends and Johnson. The defense also proposed lesser included offense instructions. The jury found Johnson guilty of second degree intentional murder as a lesser included offense of first degree murder, and found him guilty as charged of second degree felony murder. The jury also found, as to each count, that a deadly weapon was used.
During discussion of jury instructions and again before sentencing, defense counsel argued that the charging scheme violated double jeopardy. The court disagreed, reasoning that the two counts merely described alternative means for one crime of second degree murder, and entered the finding that "Counts I & II merge into one conviction of Murder in the Second Degree." The court imposed only one sentence.
Johnson contends his sentence violates the constitutional prohibition against double jeopardy.1 The double jeopardy clauses of the Fifth Amendment and article 1, section 9 of the Washington Constitution prohibit multiple punishments for the same offense.2 Felony murder and intentional murder of the same victim are alternative means of committing one offense,3 and are therefore the same offense for double jeopardy purposes.4 The question here is thus whether Johnson received multiple punishments. We conclude that he did not.
Johnson's judgment and sentence contains four sections, labeled "Hearing", "Findings", "Judgment" and "Order." In the findings, the court correctly recited that Johnson was found guilty on both counts by jury verdict, but further found that the two counts constituted only one conviction.5 In the judgment section, the court adjudged Johnson guilty as set forth in the findings, thus incorporating the language that there was but one conviction. The court sentenced Johnson to 219 months of incarceration only on count I and imposed no sentence regarding count II. Therefore, contrary to Johnson's claim, the judgment and sentence does not impose "two counts of conviction" constituting multiple punishments. And while Johnson cites authority that multiple convictions violate double jeopardy even if the sentences run concurrently, the cases are inapposite because Johnson received only one conviction and one sentence.6
Johnson focuses on the court's use of the word "merge" and argues that the merger doctrine does not insulate the sentence from his double jeopardy challenge because merger is defined in the Sentencing Reform Act and is limited to "situations where multiple convictions are counted as one crime for purposes of calculating the offender score." This argument fails for two reasons. First, merger is not simply a creation of the Sentencing Reform Act. "The double jeopardy clauses of the United States and Washington constitutions are the foundation for the merger doctrine."7 The second and more important reason is that despite using the word "merge," the court was not applying the merger doctrine. The doctrine is a rule of statutory construction used to determine when the Legislature intends that an act violating more than one statute is to be punished as a single crime.8 Here the court properly understood that because felony murder and intentional murder are alternative means, there could be only one conviction. The court chose its language not to invoke the merger doctrine but to create the effect of a merger.9 "Where offenses merge and the defendant is punished only once, there is no danger of a double jeopardy violation."10 Johnson's double jeopardy claim fails because he did not receive multiple punishments.
Johnson argues that double jeopardy was violated because he was charged with four crimes. He reasons that he was charged with four crimes because the jury received four instructions defining crimes. But the trial court properly gave three definitional instructions regarding the premeditated murder count because Johnson received lesser included offense instructions for that count.11 And the fourth definition properly reflected the count charging the alternative means of second degree felony murder.12 Moreover, contrary to Johnson's claim, because the two counts involved alternative means, not alternative crimes, the jury was not required to elect only one of the means.13 And the State properly charged both alternative means because they are not repugnant.14
Johnson also cites a number of concurring and dissenting opinions to argue that the State's charging scheme prejudiced him. But as the trial court correctly held, the circumstances of this case made it clear to the jury that there was but one homicide and the jury would not have been misled to Johnson's detriment into convicting solely because of a multiplicity of charges.15 And even if the State's charging scheme could be thought to violate the multiplicity doctrine, Johnson has failed to demonstrate prejudice entitling him to any relief.16
Johnson challenges many evidentiary rulings. We review the rulings for abuse of discretion.17 An abuse occurs when the court's decision is manifestly unreasonable or based on untenable grounds.18 We find no error here.19
Admitting evidence about Johnson's car was proper as Ruff's supposed sabotage of Johnson's car was the State's theory of motive for the killing. Similarly, the court properly admitted evidence of the tire irons sitting loose in Johnson's car because, as the court noted, an inference could be drawn that Johnson had just used them to tighten the lug nuts Ruff had loosened. Johnson's nickname "Ant-dog" was relevant to the issue of identity of the perpetrator and was not so prejudicial as to preclude its admission.20 Likewise, Essie Winters' testimony that Ruff often referred to Johnson as "man" also went to Johnson's identification. Testimony concerning Essie Winter's physical condition was relevant to her limited abilities to intervene in the fight and summon help, and in addition was obviously not prejudicial to Johnson because her partial paralysis and speech impediment infirmities were apparent to the jury. Nor was the judge inappropriately solicitous.21 Winter's testimony that Ruff and Johnson had physical battles in the past was not improper propensity evidence because in context she was clearly not referring to any type of altercation remotely similar to what happened here, but rather was explaining why the first sounds of struggle did not alert her that anything serious was going on.22 Officer Volluz' observations that Johnson had washed and was wearing clean clothes did not constitute an impermissible opinion on guilt. And Johnson's complaints about the autopsy photographs are unreviewable as he has not provided the exhibits.23
Ruff's statements identifying Johnson as his attacker were admissible as dying declarations. Ruff's statements about Jesus and being ready to go, together with his wounds and the very...
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