State v. Pam

• Decision Date: 10 February 1983
• Docket Number: No. 48355-8,48355-8
• Citation: 98 Wn.2d 748,659 P.2d 454
• Parties: STATE of Washington, Respondent, v. Isaac Lee PAM, Petitioner.
• Court: Washington Supreme Court

Page 748

98 Wn.2d 748

659 P.2d 454

STATE of Washington, Respondent, v. Isaac Lee PAM, Petitioner.

No. 48355-8.

Supreme Court of Washington En Banc.

Feb. 10, 1983.

Seattle-King County Public Defender Assoc., Mark Leemon, Seattle, for petitioner.

Norman K. Maleng, King County Prosecutor, A.W. Matthews, Joanne Maida, Deputy Pros. Attys., Seattle, for respondent.

DORE, Justice.

Isaac Pam was identified as one of two men who robbed an auto supply store in Seattle in July 1979. Four witnesses testified that Pam carried a gun or shotgun. Witness Dill testified that he recognized Pam because he and Pam had been incarcerated at the same time. Dill stated that he called out to Pam, who pointed the weapon at him and warned him to "get away" before fleeing the scene. The weapon fell apart as Pam was running away. No shots were fired. Police recovered the wooden forestock of "what appeared to be a shotgun," as one officer testified. The remainder of the weapon was not introduced into evidence. The trial judge, over objection, admitted Pam's prior robbery, forgery and narcotics convictions. Because of this ruling, Pam declined to testify.

On May 12, 1980, Pam was found guilty of first degree robbery while armed with a deadly weapon, and second degree assault while armed with a deadly weapon and a firearm. Pam appealed and the Court of Appeals affirmed Pam's judgment and sentence. State v. Pam, 30 Wash.App. 471, 635 P.2d 766 (1981).

I

Defendant Pam appeals to this court, alleging the following error:

1. The court erred in submitting to the jury a special verdict form asking whether the defendant was armed with a "deadly weapon" during the commission of the crime, and also erred in not instructing the jury separately as to the State's burden of proof, as required under State v. Tongate, 93 Wash.2d 751, 613 P.2d 121 (1980).

2. The court erred in ruling to allow the defendant's prior convictions to be placed in the record in the event Pam testified.

3. The court erred in admitting testimony concerning the defendant's prior incarceration for a crime for which he was never convicted.

II

Initially, we consider the use of the deadly weapon statutes to restrict the Board of Prison Terms and Paroles' power to parole Pam. The jury was given special verdict form A, which read:

We, the jury in the above-entitled cause, do return a special verdict by answering as follows: Was the defendant ISAAC LEE PAM armed with a deadly weapon at the time of the commission of the crime of Robbery in the First Degree as charged in Count I?

(Clerk's, Papers, at 40.)

Special Verdict Form B read:

We, the jury in the above-entitled cause, do return a special verdict as follows: (1) Was the defendant ISAAC LEE PAM armed with a deadly weapon at the time of the commission of the offense of Assault 2? as charged in Count II? (2) If the answer to question (1) is "yes," was the deadly weapon a firearm?

(Clerk's Papers, at 39.)

Through the use of these special verdict forms, the jury found Pam was armed with a firearm at the time he committed second degree assault and was also armed with a deadly weapon at the time he committed first degree robbery. The court failed, however, to instruct the jury that the separate deadly weapon and firearm findings must be proved beyond a reasonable doubt, as required under State v. Tongate, 93 Wash.2d 751, 613 P.2d 121 (1980), decided June 19, 1980. In the present case, the jury was instructed only that the State had the burden of proving each element of the crime beyond a reasonable doubt.

Under RCW 9.95.040, ¹ the State must prove the presence of a deadly weapon in fact in order to permit a special finding that the defendant was armed with a deadly weapon. A defendant's penalty cannot be enhanced if the evidence establishes only that he was armed with a gun-like, but nondeadly, object. State v. Tongate, supra. Under RCW 9.41.025, ² the State must prove the presence of a "firearm," which is defined under WPIC 2.10 as a "weapon from which a projectile may be fired by an explosive such as gun powder". A gun-like object incapable of being fired is not a "firearm" under this definition.

An error infringing upon a defendant's constitutional rights is presumed prejudicial, and the State has the burden of proving that the error was harmless. State v. Caldwell, 94 Wash.2d 614, 618 P.2d 508 (1980). ³ The constitutional error cannot be declared harmless unless it was "harmless beyond a reasonable doubt". State v. Stephens, 93 Wash.2d 186, 607 P.2d 304 (1980). A "harmless error" is one which is " 'trivial, or formal, or merely academic, and was not prejudicial to the substantial rights of the party assigning it, and in no way affected the final outcome of the case ' ". State v. Wanrow, 88 Wash.2d 221, 237, 559 P.2d 548 (1977).

In the present case, the trial judge's error in failing to instruct the jury that it must find beyond a reasonable doubt that defendant used a firearm and/or deadly weapon, was not a harmless error. A reasonable doubt is a doubt for which a reason based upon the evidence exists. State v. Tanzymore, 54 Wash.2d 290, 340 P.2d 178 (1959); WPIC 4.01. Here, the weapon fell apart as the defendant was running away. Police recovered the wooden forestock of "what appeared to be a shotgun", as one officer testified. The remainder of the weapon was not introduced into evidence. Unlike State v. Hall, 95 Wash.2d 536, 627 P.2d 101 (1981) and State v. Claborn, 95 Wash.2d 629, 628 P.2d 467 (1981) in our footnote 3 in which we concluded the court's error in failing to instruct was harmless, no shots were fired. Additionally, no bullets were recovered. With the appropriate instructions, a rational jury could have a reasonable doubt as to the operability of the weapon.

The claimed error in such instruction was raised for the first time on appeal. An appellate court will consider such error only when the giving or failure to give an instruction invades a fundamental constitutional right of the accused (such as the right to a jury trial) and would probably change the result of the case. State v. Green, 94 Wash.2d 216, 231, 616 P.2d 628 (1980); Const. art. 1, § 21. In Tongate, this court rejected a distinction between the proof required for elements of an offense under In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (beyond a reasonable doubt by constitutional mandate) and the proof required for a sentence enhancement provision. In so doing, we cited Mullaney v. Wilbur, 421 U.S. 684, 698, 95 S.Ct. 1881, 1889, 44 L.Ed.2d 508 (1975):

The safeguards of due process are not rendered unavailing simply because a determination may already have been reached that would stigmatize the defendant and that might lead to a significant impairment of personal liberty.... [W]hen viewed in terms of the potential difference in restrictions of personal liberty attendant to each conviction, the distinction established by Maine between murder and manslaughter may be of greater importance than the difference between guilt or innocence for many lesser crimes.

In Tongate, we also relied upon Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) in declining to assume that a reasonable jury, in the absence of an explicit instruction on the standard of proof, will understand the applicable standard to be applied to the separate finding where the fact to be found is not an element of the crime as charged. We hold that the trial court's failure to instruct in this instance is prejudicial error affecting defendant's constitutional rights and that we will consider this issue on appeal.

The ultimate issue then becomes the retroactivity of Tongate. We find persuasive and controlling the United States Supreme Court's reasoning in the recent case of United States v. Johnson, --- U.S. ----, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). There, the court applied a Fourth Amendment decision retroactively to all convictions that were not yet final at the time the decision was rendered. The court held this rule would apply to all Fourth Amendment decisions, except those cases clearly controlled by existing retroactivity precedents. ⁴

The Johnson court reasoned that the retroactive application of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) to all previously nonfinal convictions would provide a principle of decisionmaking consistent with the court's original understanding of retroactivity expressed in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) and Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966). The Johnson court also reasoned that such a principle is capable of general applicability, thus preventing an artificial restructuring of "expectations legitimately created by extant law". Johnson, --- U.S. at ----, 102 S.Ct. at 2590, 73 L.Ed.2d at 217. Additionally, the court found its application of Payton to cases pending on direct review to comport with judicial responsibilities "to do justice to each litigant on the merits of his own case." Desist v. United States, 394 U.S. 244, 259, 89 S.Ct. 1030, 1039, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting). The application of this approach in Johnson also furthered the court's goal of treating similarly situated defendants in a like manner. We are compelled to adopt the rationale of Johnson in the present case. We now hold that we will apply the Tongate rule to all cases still pending on direct appeal at the time Tongate was decided. To do so provides a principle of decisionmaking consonant with the reasoning that all newly declared constitutional rules of criminal procedure should apply retrospectively to all convictions not yet final when the rule was established. Linkletter v. Walker, supra; Tehan v. United States ex rel. Shott, supra. This resolution of the issue also comports with our duty to "do justice to each litigant on the merits of his own case". Desist, 394 U.S. at...