State v. McKim, 47379-0

• Decision Date: 18 November 1982
• Docket Number: No. 47379-0,47379-0
• Citation: 98 Wn.2d 111,653 P.2d 1040
• Parties: STATE of Washington, Respondent, v. Richard Franklin McKIM, Petitioner.
• Court: Washington Supreme Court

Page 111

98 Wn.2d 111

653 P.2d 1040

STATE of Washington, Respondent, v. Richard Franklin McKIM, Petitioner.

No. 47379-0.

Supreme Court of Washington En Banc.

Nov. 18, 1982.

Seattle-King County Public Defender Assn., Lewis H. Nomura, Rosemary P. Bordlemay, Michael Filipovic, Seattle, for petitioner.

Norman K. Maleng, King County Prosecutor, Robert S. Lasnik, Sr. Deputy Pros. Atty., Seattle, for respondent.

WILLIAM H. WILLIAMS, Justice.

The issue before us is whether the deadly weapon statute, RCW 9.95.040, ¹ can be applied to enhance the sentence of a defendant who was not personally armed during the commission of an offense. The trial court answered affirmatively and so instructed the jury, which returned a special verdict finding petitioner was armed with a deadly weapon. The Court of Appeals, Division One, agreed and affirmed the conviction and enhanced sentence. We likewise agree the deadly weapon statute may apply to a personally unarmed participant in a crime, but reverse the courts below because the jury was not instructed that it had to find petitioner knew his codefendant was so armed.

On the morning of February 5, 1978, a pharmacist at Peppel's Pharmacy in Seattle was robbed of various drugs at gunpoint by a lone individual. The pharmacist later identified Steven Lee Barry, petitioner's codefendant at trial, as the holdup man. Barry ran to a waiting getaway car driven by an individual later identified as petitioner. Both were subsequently arrested and charged with first degree robbery while armed with a deadly weapon and firearm.

The parties agree that the jury was told in instruction No. 7, over petitioner's objection, that for purposes of the deadly weapon and firearm allegations, "if one of the two participants is armed with a firearm and/or deadly weapon, then both are considered to be so armed." Clerk's Papers, at 16. The parties also agree petitioner was not personally armed during the robbery. The jury found petitioner guilty of first degree robbery. Additionally, the jury made a special finding, pursuant to RCW 9.95.015, that petitioner was armed with a deadly weapon and a firearm at the time of the offense. The firearm finding was later stricken by the trial court after we filed our opinion in State v. Workman, 90 Wash.2d 443, 584 P.2d 382 (1978).

An appeal was taken to the Court of Appeals, Division One. In an unpublished opinion, the Court of Appeals affirmed petitioner's conviction and his enhanced sentence. A motion for reconsideration was later denied by the court. Petitioner then filed a petition for review in this court, but consideration of the petition was deferred pending our final decision in State v. Rieger, 96 Wash.2d 546, 637 P.2d 236 (1981). We found it unnecessary in Rieger to decide the issue squarely presented in this case, so we granted this petition to resolve the issue of the applicability of the deadly weapon statute.

The question here is whether the statutory language of RCW 9.95.015 and .040 can be construed to cover the situation in this case. In interpreting statutory language, it is the duty of the court to ascertain and give effect to the intent and purpose of the legislature, as expressed in the act. In re Lehman, 93 Wash.2d 25, 27, 604 P.2d 948 (1980); Burlington Northern, Inc. v. Johnston, 89 Wash.2d 321, 326, 572 P.2d 1085 (1977).

In Workman, we held that application of the enhancement provision of RCW 9.41.025 was improper when the use of a firearm had already enhanced the penalty for the substantive crime of first degree robbery. In considering the consolidated cases, we concluded:

In neither case may the State seek to invoke the provisions of RCW 9.41.025(1) [the firearm statute], enhancing the penalty already provided by the robbery statute. The State may, however, invoke the provisions of RCW 9.95.040 [the deadly weapon statute] regarding restriction of parole rights.

(Italics ours.) Workman, at 456-57. We distinguished the firearm statute from the deadly weapon statute in that the former is directed to the sentencing court, whereas the latter is directed only to the parole board. The above language has been followed in at least two Court of Appeals opinions to permit RCW 9.95.040 to enhance the sentence in first degree robbery convictions. State v. Loux, 24 Wash.App. 545, 551, 604 P.2d 177 (1979); State v. Walker, 23 Wash.App. 618, 619, 597 P.2d 453 (1979). Recently, we reaffirmed our adherence to the above language from Workman in the case of In re Carle, 93 Wash.2d 31, 34, 604 P.2d 1293 (1980).

In order for the deadly weapon enhancement statute to apply, a special verdict or finding of fact is required establishing that petitioner was armed with a deadly weapon at the time of commission of the offense:

In every criminal case wherein conviction would require the board of prison terms and paroles to determine the duration of confinement and wherein there has been an allegation and evidence establishing that the accused was armed with a deadly weapon at the time of the commission of the crime, the court shall make a finding of fact of whether or not the accused was armed with a deadly weapon, as defined by RCW 9.95.040, at the time of the commission of the crime, or if a jury trial is had, the jury shall, if it find the defendant guilty, also find a special verdict as to whether or not the defendant was armed with a deadly weapon, as defined in RCW 9.95.040, at the time of the commission of the crime.

(Italics ours.) RCW 9.95.015. Petitioner points to the above italicized language as indicating that he must be personally armed to have his sentence enhanced for a deadly weapon. He argues the only way to have his sentence enhanced by the conduct of another would be by way of the complicity statute, RCW 9A.08.020(1):

(1) A person is guilty of a crime if it is committed by the conduct of another person for which he is legally accountable.

(Italics ours.) Petitioner then contends the complicity statute is inapplicable for this purpose since the deadly weapon statute does not create a separate offense, but merely limits the discretion of the Board of Prison Terms and Paroles in the setting of minimum sentences. State v. Claborn, 95 Wash.2d 629, 637, 628 P.2d 467 (1981). To the extent the applicability of the deadly weapon statute to petitioner depends on the complicity statute, petitioner's statutory argument is sound.

In State v. Silvernail, 25 Wash.App. 185, 192-93, 605 P.2d 1279 (1980), Division One of the Court of Appeals examined the same issue now before us. The court determined State v. Willis, 5 Wash.App. 441, 487 P.2d 648 (1971), to be the controlling authority. That case held that a defendant is deemed armed if another accused who participated in the same offense was armed with a deadly weapon. Willis was premised on former RCW 9.01.030, which provided in pertinent part:

Every person concerned in the commission of a felony ... whether he directly commits the act constituting the offense, or aids or abets in its commission, and whether present or absent ... is a principal, and shall be proceeded against and punished as such.

Willis, at 443, 487 P.2d 648. In essence, the old accomplice liability statute provided for "punishment" of an accomplice to the same extent as the principal. No parallel "punishment" provision is contained in the present statute, RCW 9A.08.020(1).

The Silvernail court held the deadly weapon enhancement statute could be applied to an unarmed defendant if a codefendant was armed, since it determined the Willis reasoning was unaffected by the subsequent passage of RCW 9A.08.020(1). Silvernail, 25 Wash.App. at 192-93, 605 P.2d 1279. As we noted above, however, the new provision is quite different in that it contains no equal punishment provision for codefendants and its applicability is limited to accountability for crimes. It is well settled that the deadly weapon statute does not define a crime. Claborn, 95 Wash.2d at 637, 628 P.2d 467. The Silvernail rationale has been followed by the Court of Appeals in State v. Rieger, 26 Wash.App. 321, 613 [653 P.2d 1043] P.2d 163 (1980), aff'd in part, rev'd in part, 96 Wash.2d 546, 637 P.2d 236 (1981), and in the present case. Since we have determined the deadly weapon statute cannot be activated by the present complicity or accomplice liability statute, RCW 9A.08.020(1), we must now disapprove of the reasoning utilized in the Silvernail line of cases.

Instead of relying on the complicity statute as the triggering device for penalty enhancement under RCW 9.95.040, as in Silvernail, we must look to the operative language of RCW 9.95.015. That statute requires "a finding of fact of whether or not the accused was armed with a deadly weapon". (Italics ours.) RCW 9.95.015. In Rieger, we affirmed the petitioners' convictions for attempted burglary in the second degree, but struck the special verdict as to the deadly weapon statute because we could find no evidence

that there was possession, constructive or otherwise, or any knowledge by any of the defendants of the presence or even existence of the firearm, much less proof beyond a reasonable doubt ...

(Italics ours.) Rieger, at 549, 637 P.2d 236. The above italicized language left open the question of whether an accused could be armed by actual or constructive possession of a deadly weapon. We interpret the language of RCW 9.95.015 as requiring a special finding of fact that an accused was either actually armed with a deadly weapon or was constructively armed with such a weapon. The phrase "constructively armed with a deadly weapon" means the accused's accomplice must have been actually armed with a deadly weapon and the accused must have had knowledge that the accomplice was so armed.

In State v. Plakke, 31 Wash.App. 262, 266-67, 639 P.2d 796 (1982), Division Two of the Court of Appeals required the State to prove beyond a reasonable doubt that an accomplice to a first degree robbery knew his coparticipant was...