State v. Nuñez
| Citation | 174 Wash.2d 707,285 P.3d 21 |
| Decision Date | 07 June 2012 |
| Docket Number | 85947–7.,Nos. 85789–0,s. 85789–0 |
| Court | United States State Supreme Court of Washington |
| Parties | STATE of Washington, Respondent, v. Enrique Guzman NUÑEZ, Petitioner. State of Washington, Petitioner, v. George W. Ryan, Respondent. |
OPINION TEXT STARTS HERE
Appeal from Douglas County Superior Court, Honorable John Hotchkiss, J.
Jan Trasen, Attorney at Law, Thomas Michael Kummerow, Washington Appellate Project, Brian Martin Mcdonald, Prosecuting Atty King County, King Co Pros/App Unit Supervisor, King County Prosecuting Attorney, Seattle, WA, for Petitioner(s).
Eric C. Biggar, Douglas County Prosecutors Office, Waterville, WA, Christopher Gibson, Nielsen Broman & Koch PLLC, Seattle, WA, for Respondent(s).
[174 Wash.2d 709]¶ 1 The Sixth Amendment to the United States Constitution requires that a jury must unanimously find beyond a reasonable doubt any aggravating circumstances that increase a defendant's sentence. In Washington, a jury uses special verdict forms to find these aggravating circumstances. In State v. Bashaw, 169 Wash.2d 133, 234 P.3d 195 (2010), we held in part that a jury may reject a special finding on an aggravating circumstance even if the jurors are not unanimous.1 In these two consolidated cases, the trial court instructed the jury that it must be unanimous to either accept or reject the aggravating circumstances, contrary to our decision in Bashaw. However, the nonunanimity rule adopted in Bashaw was based on an incorrect rule announced in State v. Goldberg, 149 Wash.2d 888, 894, 72 P.3d 1083 (2003). This rule conflicts with statutory authority, causes needless confusion, does not serve the policies that gave rise to it, and frustrates the purpose of jury unanimity. Accordingly, we take this opportunity to reconsider this portion of our holding in Bashaw and hold that the nonunanimity rule cannot stand. We affirm the Court of Appeals in upholding Nuñez's conviction and sentence, reverse the Court of Appeals and reinstate Ryan's exceptional sentence, and remand both cases for proceedings consistent with this opinion.
¶ 2 Enrique Nuñez 2 was convicted of delivery of a controlled substance and possession of a controlled substance. The State included a special allegation on the aggravating circumstance that each crime took place within 1,000 feet of a school bus stop. The jury was given a special verdict form for each count regarding the school bus stop allegation. Instruction 15 stated that the jury must be unanimous to answer the special verdict forms:
Because this is a criminal case, all twelve of you must agree in order to answer the special verdict forms. In order to answer the special verdict forms “yes,” you must unanimously be satisfied beyond a reasonable doubt that “yes” is the correct answer. If you unanimously have a reasonable doubt as to this question, you must answer, “no.”
Nuñez Clerk's Papers (Nuñez CP) at 30. Nuñez did not object to the form of Instruction 15.
¶ 3 The jury unanimously answered both special verdict forms “yes.” At sentencing, the trial court imposed one 24–month sentence enhancement for the possession count. Nuñez appealed his conviction. After we decided Bashaw, 169 Wash.2d 133, 234 P.3d 195, the Court of Appeals, Division Three held that Nuñez was barred from raising the Bashaw error for the first time on appeal. State v. Guzman Nuñez, 160 Wash.App. 150, 153, 165, 248 P.3d 103 (2011).
¶ 4 George Ryan was convicted of second degree assault and felony harassment after he threatened to kill his ex-girlfriend with a knife. The State alleged two aggravating circumstances: (1) the offenses involved domestic violence with a pattern of abuse and (2) that Ryan committed felony harassment while armed with a deadly weapon. The trial court provided special verdict forms for the aggravating circumstances and gave a jury instruction identical to the instruction in Nuñez, quoted supra. Ryan did not object to this instruction.
¶ 5 The jury answered “yes” to the special verdict forms and the trial court imposed exceptional sentences on both counts. Division One affirmed Ryan's convictions but vacated the exceptional sentence because the trial court failed to give a nonunanimity instruction under Bashaw.State v. Ryan, 160 Wash.App. 944, 950, 252 P.3d 895 (2011). We accepted review and consolidated the two cases. State v. Ryan, 172 Wash.2d 1004, 258 P.3d 676 (2011).
¶ 6 “ ‘Fixing of penalties or punishments for criminal offenses is a legislative function....’ “ State v. Ammons, 105 Wash.2d 175, 180, 713 P.2d 719, 718 P.2d 796 (1986) (quoting State v. Mulcare, 189 Wash. 625, 628, 66 P.2d 360 (1937)). Our legislature has enacted factors that can increase a sentence beyond the standard range in a number of different statutes. Some can be found in the Sentencing Reform Act of 1981(SRA), chapter 9.94A RCW. E.g.,RCW 9.94A.535(3) (); RCW 9.94A.533(3) (). Others are found in the provisions for criminal procedure. RCW 10.95.020 (). Still others are found outside the criminal code entirely. RCW 69.50.435(1)(c) ().
¶ 7 Regardless of the statutory source of the aggravator, the jury must unanimously find beyond a reasonable doubt any aggravating circumstance that increases the penalty for a crime. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 313–14, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In Bashaw, we held that unanimity was not required to reject an aggravating circumstance. 169 Wash.2d at 146, 234 P.3d 195.
¶ 8 In Bashaw, we based our adoption of the nonunanimity rule entirely on Goldberg, 149 Wash.2d 888, 72 P.3d 1083. We now perceive problems with Goldberg's nonunanimity rule, conclude that the rule was erroneously applied in Goldberg, and reexamine our application of the rule in Bashaw.
¶ 9 In Goldberg, the jury considered an aggravating circumstance under RCW 10.95.020, that would allow a sentence of life in prison without the possibility of release or parole. 149 Wash.2d at 893, 72 P.3d 1083. The jury was instructed that it must be unanimous to find an aggravating circumstance and that if it had a reasonable doubt it must reject the aggravator by answering the special verdict form “no.” Id. The jury answered “no” on the special verdict form, but a poll of the jury revealed that only three jurors had voted “no.” Id. at 891, 72 P.3d 1083. The trial court instructed the jury to continue deliberations to attempt to reach a unanimous verdict. Id. We held that the trial court erred by sending the jury back to continue deliberating on the aggravating factors because unanimity is not required to reject an aggravating circumstance. Id. at 894, 72 P.3d 1083.
[174 Wash.2d 713]¶ 10 In Bashaw, we extended that rule to the school bus zone aggravating circumstance—identical to the aggravator before us now in Nuñez.169 Wash.2d at 145, 234 P.3d 195. We stated that “[a] nonunanimous jury decision is a final determination that the State has not proved the special finding beyond a reasonable doubt” and held that the nonunanimity rule served policy considerations of judicial economy and finality. Id. at 146–47, 234 P.3d 195. We based our decision on common law rather than constitutional grounds. Id. at 146 n. 7, 234 P.3d 195.
¶ 11 In these consolidated cases, the State asks that we revisit Goldberg and Bashaw and reject the nonunanimity rule. We require “ ‘a clear showing that an established rule is incorrect and harmful before it is abandoned.’ “ Riehl v. Foodmaker, Inc., 152 Wash.2d 138, 147, 94 P.3d 930 (2004) (quoting In re Rights to Waters of Stranger Creek, 77 Wash.2d 649, 653, 466 P.2d 508 (1970)).
¶ 12 We now conclude that Goldberg's nonunanimity rule is incorrect for two reasons: (1) the authority on which it relies does not support it and (2) it conflicts with our precedent.
¶ 13 First, Goldberg relies on CrR 6.16(a)(3) to support the proposition that the trial court cannot instruct the jury to continue deliberations when it cannot unanimously answer yes or no to a special finding for an aggravating circumstance. 149 Wash.2d at 894, 72 P.3d 1083. But CrR 6.16(a)(3)3 states:
When a verdict or special finding is returned and before it is recorded, the jury shall be polled.... If at the conclusion of the poll, all of the jurors do not concur, the jury may be directed to retire for further deliberations....
(Emphasis added.) Nothing in the rule states a different standard for special findings on aggravating circumstances. Therefore, the rule does not support our holding in Goldberg.
[174 Wash.2d 714]¶ 14 Second, the nonunanimity rule applied in Goldberg conflicts with our precedent. In State v. Brett, we approved jury instructions that required unanimity to reject an aggravating factor for aggravated first degree murder. 126 Wash.2d 136, 173–74, 892 P.2d 29 (1995). In Brett, as in Goldberg, the defendant was charged with aggravated first degree murder under RCW 10.95.020. Brett, 126 Wash.2d at 154, 892 P.2d 29. The jury was instructed to answer a special verdict form regarding aggravating circumstances only if it found that the defendant had committed first degree murder. Id. at 173, 892 P.2d 29. In that instance, the jury was further instructed:
“The State has the burden to prove beyond a reasonable doubt, as previously defined, one or more of the above-listed aggravating circumstances.... You must unanimously agree upon which, if any, of the aggravating circumstances set forth before has been proved beyond a reasonable doubt. You will be provided with a Special Verdict Form “B” for each aggravating circumstance in which you answer “yes” or “no” according to the decision you...
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