State v. Kier

• Decision Date: 09 October 2008
• Docket Number: No. 81030-03.,81030-03.
• Citation: 194 P.3d 212,164 Wn.2d 798
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Herbert John KIER, a/k/a John Herbert Kier, Appellant.

194 P.3d 212

164 Wn.2d 798

STATE of Washington, Respondent, v. Herbert John KIER, a/k/a John Herbert Kier, Appellant.

No. 81030-03.

Supreme Court of Washington, En Banc.

Argued February 14, 2008.

Decided October 9, 2008.

Dennis John McCurdy, King County Prosecutor's Office, Seattle, WA, for Respondent.

Eric Broman, David Bruce Koch, Nielsen Broman & Koch PLLC, Seattle, WA, Harlan R. Dorfman, Attorney at Law, New West-minster, BC, for Appellant.

STEPHENS, J.

¶ 1 In State v. Freeman, 153 Wash.2d 765, 108 P.3d 753 (2005), we recognized that when an assault elevates a robbery to first degree, generally the two offenses are the same for double jeopardy purposes. We refused to adopt a per se rule, however, underscoring the need to take a "hard look at each case." Id. at 774, 108 P.3d 753. In this case, Herbert John Kier was convicted of first degree robbery and second degree assault, arising out of a carjacking incident. While he maintains that the assault conviction merges with the robbery conviction under our holding in Freeman, the State urges us to reconsider our Freeman analysis. Alternatively, the State argues that Kier's robbery and assault constituted separately punishable crimes against separate victims. Adhering to our precedent, and based on the charges, evidence, and instructions given to the jury in this case, we conclude that Kier's assault conviction merges into his robbery conviction. Accordingly, we reverse the conviction for second degree assault and remand to the trial court for resentencing.

FACTS

¶ 2 On April 27, 1999, 20-year-old Qualagine Hudson was driving his Cadillac home from a car shop in South Seattle. Hudson's 16-year-old cousin, Carlos Ellison, was seated in the passenger seat. Ellison lived with Hudson at the time and did not yet have his driver's license. Hudson had been trying to sell his Cadillac and had a "For Sale" sign posted in the car window. Report of Proceedings (RP) (July 14, 1999) at 46.

¶ 3 As Hudson drove down the street, three men in another car honked their horn at him. Thinking the men were interested in buying his car, Hudson pulled over, got out of the car, and started talking to the driver of the other car, Cedric Alderman. Ellison remained seated inside the Cadillac. During this conversation, Kier got out of the other car and pointed a gun at Hudson. Alderman then grabbed Hudson, but Hudson was able to break free and run away to call the police. Kier then approached the Cadillac and pointed the gun at Ellison, who was still seated in the passenger seat. Kier told Ellison to, "Get the f___ out of the car." Id. at 51. Ellison got out of the car. Kier then came around and asked if Ellison had any money on his side of the car. Ellison answered that he did not. Kier, Alderman, and the third accomplice then drove away with both cars.

¶ 4 Kier was initially charged with first degree robbery. The information identified Hudson and Ellison as victims of the carjacking. By amended information, the State added a count of second degree assault, specifying Ellison as the victim. A jury found Kier guilty as charged.

¶ 5 This appeal follows two prior appeals and a personal restraint petition involving other issues affecting Kier's sentence. State v. Kier, noted at 109 Wash.App. 1020, 2001 WL 1463810 (2001); State v. Kier, noted at 119 Wash.App. 1028, 2003 WL 22766038 (2003).

¶ 6 Following our decision in Freeman, Kier filed a motion to vacate his second degree assault conviction as a violation of his right against double jeopardy. The trial court denied the motion. Kier appealed to Division One of the Court of Appeals, which transferred the matter to this court under RAP 4.4 to promote the orderly administration of justice.

ANALYSIS

Merger: Double Jeopardy

¶ 7 The State may bring multiple charges arising from the same criminal conduct in a single proceeding. State v. Michielli, 132 Wash.2d 229, 238-39, 937 P.2d 587 (1997). However, state and federal constitutional protections against double jeopardy prohibit multiple punishments for the same offense. State v. Vladovic, 99 Wash.2d 413, 422, 662 P.2d 853 (1983); Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); see CONST. art. I, § 9 ("No person shall be ... twice put in jeopardy for the same offense."); U.S. CONST. amend. V (same). Within constitutional constraints, the legislature has the power to define criminal conduct and assign punishment to it. State v. Calle, 125 Wash.2d 769, 776, 888 P.2d 155 (1995) (recognizing rape and incest as separate offenses). "`Where a defendant's act supports charges under two criminal statutes, a court weighing a double jeopardy challenge must determine whether, in light of legislative intent, the charged crimes constitute the same offense.'" Freeman, 153 Wash.2d at 771, 108 P.3d 753 (quoting In re Pers. Restraint of Orange, 152 Wash.2d 795, 815, 100 P.3d 291 (2004)). Our review is de novo, and legislative intent is the touchstone. Id.

¶ 8 In Calle we set forth a three-part test for determining whether the legislature intended multiple punishments in a particular situation. 125 Wash.2d at 776, 888 P.2d 155. We first consider express or implicit legislative intent based on the criminal statutes involved. Id. If the legislative intent is unclear, we may then turn to the "same evidence" Blockburger test, which asks if the crimes are the same in law and in fact. Calle, 125 Wash.2d at 777-78, 888 P.2d 155; Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Third, if applicable, the merger doctrine may help determine legislative intent, where the degree of one offense is elevated by conduct constituting a separate offense. Vladovic, 99 Wash.2d at 419, 662 P.2d 853. We have also recognized that, even if two convictions would appear to merge on an abstract level under this analysis, they may be punished separately if the defendant's particular conduct demonstrates an independent purpose or effect of each. Freeman, 153 Wash.2d at 773, 108 P.3d 753; State v. Johnson, 92 Wash.2d 671, 680, 600 P.2d 1249 (1979).

¶ 9 Relying on our analysis in State v. Zumwalt, the consolidated case decided under Freeman, Kier argues that the legislature did not intend separate punishments for his first degree robbery and second degree assault convictions because the threat to use force necessary to the assault elevated the robbery to first degree. Br. of Appellant at 10-13. The State responds that our Freeman analysis was wrong. Br. of Resp't at 5, 13-17.

¶ 10 Preliminarily, the State's suggestion that courts should not follow Freeman because it was "decided incorrectly," brief of respondent at 5, fails to appreciate the doctrine of stare decisis. We do not lightly set aside precedent, and the burden is on the party seeking to overrule a decision to show that it is both incorrect and harmful. See State v. Devin, 158 Wash.2d 157, 168, 142 P.3d 599 (2006) (citing In re Rights to Waters of Stranger Creek, 77 Wash.2d 649, 653, 466 P.2d 508 (1970)). The State makes no attempt to meet this burden.

¶ 11 Moreover, we are persuaded that Freeman correctly analyzed the robbery and assault statutes at issue to conclude that second degree assault merges into first degree robbery, while first degree assault, which carries a much larger penalty, does not. Freeman, 153 Wash.2d at 773-78, 108 P.3d 753. Notably, the legislature has amended the second degree assault statute since Freeman without taking any action in response to our decision. See LAWS of 2007, ch. 79, § 2; see also Buchanan v. Int'l Bhd. of Teamsters, 94 Wash.2d 508, 511, 617 P.2d 1004 (1980) (noting presumption of legislative acquiescence in judicial interpretation where statute is amended following court decision without change to relevant portions). We are confident that our analysis in Freeman accurately reflects the legislature's intent.

¶ 12 The central question, then, is whether this case is like the Zumwalt case in Freeman, specifically whether Kier's second degree assault conviction merges into his first degree robbery conviction, where the carjacking incident giving rise to both charges involved two victims, and where the prosecutor in closing argument identified the driver as the victim of the robbery and the passenger as the victim of the assault.¹

¶ 13 While the situation here is not identical to Zumwalt, in light of the way this case was charged and presented to the jury, we conclude that Kier's assault conviction merges into his robbery conviction.

¶ 14 The jury convicted Kier under RCW 9A.56.200(1)(a)(i)-(ii), formerly RCW 9A.56.200(1)(b) (1975), which provides that a person is guilty of first degree robbery if he is armed with a deadly weapon or displays what appears to be a firearm or deadly weapon, during the commission of a robbery. Clerk's Papers (CP) at 5. The general definition of robbery requires the taking of property by the use or threatened use of immediate force, violence, or fear of injury to a person or his property, or the person or property of anyone. RCW 9A.56.190. Kier was also convicted of second degree assault under RCW 9A.36.021(1)(c), which finds a person guilty if he, inter alia, assaults another with a deadly weapon. CP at 6. There is no definition of assault in the criminal code, and Washington courts apply the common law definitions of assault. State v. Walden, 67 Wash.App. 891, 893, 841 P.2d 81 (1992). One common law form of assault involves putting another in apprehension or fear of harm, regardless of whether the actor intends to inflict or is incapable of inflicting such harm. Id. at 893-94, 841 P.2d 81; State v. Wilson, 125 Wash.2d 212, 218, 883 P.2d 320 (1994). At Kier's trial, the jury was instructed on this common law definition of assault. CP at 112.

¶ 15 When the definitions of first degree robbery and second degree assault are set side by side, it is clear that both charges required the State to prove that Kier's conduct created a...