State v. Mills
| Decision Date | 07 April 2005 |
| Docket Number | No. 73894-7.,73894-7. |
| Citation | 154 Wash.2d 1,109 P.3d 415 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Morning Leray MILLS, Petitioner. |
Jason Saunders, Washington Appellate Project, Seattle, for Petitioner.
James Morrissey Whisman, Julie Dee Cook, King County Prosecutor's Office, Seattle, for Respondent.
¶ 1 In this case, we address whether a single element may be bifurcated from the "to convict" instruction to a special verdict form where such element elevates a base crime from a misdemeanor to a felony. We hold that such bifurcation is constitutionally permissible if the legislature has created a statutory framework that establishes a base crime with elevated penalties if an additional fact is present, and that the additional element is found beyond a reasonable doubt by a unanimous jury. However, in this case we find that the jury instructions did not clearly set forth the requirement that the jury must find that the victim was placed in reasonable fear that the threat to kill would be carried out. Accordingly, we reverse and remand for a new trial.
¶ 2 In 2001, the State charged Petitioner Morning Mills with felony harassment,2 based on a threatening phone message Jonikka Lawrence received in the early morning hours on June 7, 2000.
¶ 3 Morning Mills and Billy Edwards had been friends for many years until the two became intimate and had a child together, at which point their relationship deteriorated. Edwards subsequently became romantically involved with Jonikka Lawrence in 1999, and by June 2000 the two shared an apartment together.
¶ 4 On June 3, 2000, Mills called Lawrence and left a message for Lawrence to call her to "discuss ... our friend, Billy Edwards." Report of Proceedings (RP) at 58-59. This call "upset" Lawrence. Four days later, on June 7 at 12:45 a.m., Lawrence answered a phone call from Mills. Mills stated, "I told you about messing with him," and then told Lawrence to "look at your Altima,3 go look at your Altima," and then hung up. Id. By that time Edwards was awake. He walked outside and discovered substantial damage to Lawrence's automobile. Lawrence and Edwards called the police. About two hours later, while Lawrence was speaking to the police, she received another incoming call which she did not answer. The message's contents were as follows:
'.
Ex. 4 (); RP 64-65.
¶ 5 Lawrence testified she became "very scared" after the phone call and after subsequently learning of Mills' criminal history "thought all the more [Mills] would carry out what she said she would do." RP at 92.
¶ 6 Mills was convicted by special verdict of "Telephone Harassment — Felony Domestic Violence" as charged in count I.
¶ 7 Mills appealed her conviction to Division One of the Court of Appeals. State v. Mills, 116 Wash.App. 106, 64 P.3d 1253 (2003). The court rejected the arguments that the bifurcated structure used by the trial court was constitutionally defective. Id. at 110-16, 64 P.3d 1253. We granted Mills' petition for review and consolidated the case with State v. Davis, 116 Wash.App. 81, 64 P.3d 661 (2003). However, following a rehearing of oral argument in State v. Davis, we deconsolidated Davis and Mills and issue separate opinions in each case.
¶ 8 Before addressing the adequacy of the "to convict" instruction, it is necessary to address the State's argument that Mills waived her challenge to the "to convict" jury instruction by failing to take exception to the instruction at trial.
14 P.3d 713 (quoting State v. WWJ Corp., 138 Wash.2d 595, 603, 980 P.2d 1257 (1999)).
¶ 10 The "to convict" instruction carries with it a special weight because the jury treats the instruction as a "yardstick" by which to measure a defendant's guilt or innocence. The issue of omission of an element from that instruction is of sufficient constitutional magnitude to warrant review when raised for the first time on appeal. Accordingly, we address the merits of Mills' challenge.
¶ 11 Mills argues that bifurcating the element which elevated her base misdemeanor to a felony from the "to convict" instruction unconstitutionally relieved the State of proving the element of a "threat to kill," thereby violating her constitutional right to due process4 and a jury trial.5 The State responds by asserting the jury did find every element of the crime beyond a reasonable doubt, and placing the elevating fact in the special verdict form did not deny Mills due process, as the practice has been traditionally utilized and approved in other crimes where an elevating fact increases the statutory penalty.
¶ 12 We review the adequacy of a challenged "to convict" jury instruction de novo. State v. DeRyke, 149 Wash.2d 906, 910, 73 P.3d 1000 (2003). Though, as a general matter, "[j]ury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law," State v. Clausing, 147 Wash.2d 620, 626, 56 P.3d 550 (2002), and we review jury instructions "in the context of the instructions as a whole," State v. Pirtle, 127 Wash.2d 628, 656, 904 P.2d 245 (1995), the reviewing court generally "may not rely on other instructions to supply the element missing from the `to convict' instruction." DeRyke, 149 Wash.2d at 910, 73 P.3d 1000.
259 P.2d 845. It is clear the above quote from Emmanuel referenced other "pertinent law," such as definitions of terms, duties of the jury to disregard statements that are not evidence, and so forth. To view Emmanuel otherwise would be self-contradictory.
¶ 14 Despite this, we recognized an exception very recently in State v. Oster, 147 Wash.2d 141, 52 P.3d 26 (2002). There the defendant was convicted of felony violation of a domestic violence no-contact order. Id. at 143-44, 52 P.3d 26. The "to convict" instruction bifurcated the element of two or more prior convictions, the existence of which elevated the offense from a misdemeanor to a felony. Id. at 144-45, 52 P.3d 26. That element (prior convictions) was found by the jury beyond a reasonable doubt using a special verdict form. Id. at 145, 52 P.3d 26. We affirmed the conviction and recognized a limited exception to the general rule established in Smith and Emmanuel and held that the "to convict" instruction could separate the element of prior criminal history into a special verdict form so long as the jury made the finding beyond a reasonable doubt. Id. at 147, 52 P.3d 26. We reasoned the defendant's rights were better protected by the bifurcation because of the inherent prejudicial effect of prior criminal history. Id. Nevertheless, we reaffirmed Smith and Emmanuel to the extent they hold, "[t]he jury has a right to regard the `to convict' instruction as a complete statement of the law and should not be required to search other instructions in order to add elements necessary for conviction." Id.
¶ 15 Mills contends the Oster exception is limited solely to those crimes where the element which aggravates the underlying crime from a misdemeanor to a felony is the existence of prior convictions, whereas the State contends there is no material distinction between Oster and this case. Specifically, the State directs us to aggravated murder cases where we have approved such a bifurcated approach. We agree with the State, as limiting the Oster exception to prior convictions would undercut the appropriate use of special verdicts altogether.
¶ 16 Mills points...
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