State v. Schwab, 43255-9-I.

• Decision Date: 06 December 1999
• Docket Number: No. 43255-9-I.,43255-9-I.
• Citation: 98 Wash.App. 179,988 P.2d 1045
• Parties: STATE of Washington, Respondent, v. Dale L. SCHWAB, Jr., Appellant.
• Court: Washington Court of Appeals

988 P.2d 1045

98 Wash.App. 179

STATE of Washington, Respondent, v. Dale L. SCHWAB, Jr., Appellant.

No. 43255-9-I.

Court of Appeals of Washington, Division 1.

December 6, 1999.

James Robert Dixon, Nielsen, Broman & Assoc., Pllc, Seattle, Catherine E. Glinski, Manchester, for Appellant.

James Harrison Krider, David Frederick Thiele, Snohomish County Pros. Atty., Everett, for Respondent.

WEBSTER, J.

Appellant Dale Schwab was convicted of second degree felony murder and first degree manslaughter for a single homicide. He argues on appeal that convictions for second degree felony murder and first degree manslaughter for one homicide violate state and federal constitutional guarantees against double jeopardy. Schwab also argues that the trial court erred in refusing to instruct on second degree manslaughter as a lesser-included offense of first degree murder where instructions on first degree manslaughter and voluntary intoxication were given.

We hold that convictions for second degree felony murder and first degree manslaughter for a single homicide violate the state and federal constitutional guarantees against double jeopardy. We need not address Schwab's instructional challenge.

BACKGROUND

Schwab was charged with first degree premeditated murder and second degree felony murder based on second degree assault and/or first degree theft. A jury convicted Schwab of second degree felony murder and first degree manslaughter as a lesser included offense of first degree murder. The trial court imposed standard range sentences for both convictions to be served concurrently.

Evidence at trial showed that Schwab and Aaron Beymer were drinking together under a bridge in the evening of December 22, 1997, and the early morning of December 23, 1997. Upon encountering Ernest Sena, Schwab and Beymer engaged in an assault upon him. In statements to the police, Schwab said that his participation in the assault was limited to kicking Sena once. Sena was rendered unconscious by the assault. Schwab and Beymer checked Sena's pockets for money and took what little they found. Sena was placed unconscious on nearby railroad tracks and covered with carpet and other debris. A train came through minutes thereafter and severed Sena's body.

Testimony concerning Schwab's early statements to third parties indicates that he participated with Beymer in placing Sena on the tracks. Testimony about Schwab's later statements to police indicates that he said he did not participate in placing the victim on the tracks, rather it was all Beymer's doing. Schwab told the police that in his earlier statements to third parties he only meant that he was present when Beymer killed Sena. Beymer's testimony at trial¹ was that Schwab made no comment when Beymer suggested, "Let's kill this guy," and did not participate in placing Sena on the tracks. The evidence is consistent that Schwab was present when Sena was put on the tracks and watched as the train came through.

Evidence at trial indicates that Schwab was under the influence of alcohol and drugs at the time of the assault and homicide. The trial court instructed on voluntary intoxication:

No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his condition, but whenever the actual existence of any particular mental state is a necessary element to constitute a particular species or degree of crime, the fact of his intoxication may be taken into consideration in determining such mental state.

CP at 39. The trial court instructed on first degree manslaughter but refused to give an instruction on second degree manslaughter.

ANALYSIS

"[T]he guaranty against double jeopardy protects against multiple punishments for the same offense." State v. Calle, 125 Wash.2d 769, 776, 888 P.2d 155 (1995) (citing Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980)). Schwab argues that his convictions for felony murder and manslaughter violate double jeopardy because the legislature intends only one punishment for one unlawful homicide.

"Within constitutional constraints, the legislative branch has the power to define criminal conduct and assign punishment for such conduct." Calle, 125 Wash.2d at 776, 888 P.2d 155 (citing Whalen, 445 U.S. at 689, 100 S.Ct. 1432). Our review is limited to determining whether the trial court exceeded legislative authority to impose multiple punishments for the same offense. See Calle, 125 Wash.2d at 776, 888 P.2d 155 (citing Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981)). To determine whether the legislature intended to authorize multiple punishments for second degree felony murder and first degree manslaughter, we start with the language of the statutes. See Calle, 125 Wash.2d at 776, 888 P.2d 155 (citing Albernaz, 450 U.S. at 336, 101 S.Ct. 1137). If legislative intent is not expressly indicated, we turn to rules of statutory construction. See Calle, 125 Wash.2d at 777, 888 P.2d 155.

A. In the Absence of Express Legislative Intent We Turn to Rules of Statutory Construction

We turn first to the homicide provisions. Felony murder and manslaughter are both statutorily defined in the homicide chapter of the Washington Criminal Code. See RCW Ch. 9A.32. Homicide itself is defined in RCW 9A.32.010:

Homicide is the killing of a human being by the act, procurement, or omission of another, death occurring at any time, and is either (1) murder, (2) homicide by abuse, (3) manslaughter, (4) excusable homicide, or (5) justifiable homicide.

(emphasis supplied). An individual is guilty of second degree felony murder when:

He commits or attempts to commit any felony other than those enumerated in RCW 9A.32.030(1)(c), and, in the course of and in furtherance of such crime or in immediate flight therefrom, he, or another participant, causes the death of a person other than one of the participants;....

RCW 9A.32.050(1)(b). A person commits manslaughter in the first degree when he or she "recklessly causes the death of another person." RCW 9A.32.060(1)(a).

In Calle, the question was whether the legislature intended to allow multiple punishments for violations of the rape and incest statutes that arose out of a single act of sexual intercourse. See 125 Wash.2d at 776, 888 P.2d 155. The court first examined the statutes at issue and found that unlike the statutory provisions for burglary, see RCW 9A.52.050, the incest and rape statutes do not expressly authorize convictions for each arising out of the same act. See Calle, 125 Wash.2d at 776, 888 P.2d 155. The Court therefore turned to rules of statutory construction to discern legislative intent. See id. at 777, 888 P.2d 155. Likewise here, the felony murder and manslaughter provisions do not explicitly authorize convictions for each arising out of the same homicide. Thus, we turn to rules of statutory construction.

B. The Same Evidence Rule

Where legislative intent is not expressly indicated, we apply the "same evidence" rule of statutory construction:

In order to be the "same offense" for purposes of double jeopardy the offenses must be the same in law and in fact. If there is an element in each offense which is not included in the other, and proof of one offense would not necessarily also prove the other, the offenses are not constitutionally the same and the double jeopardy clause does not prevent convictions for both offenses.

See Calle, 125 Wash.2d at 777, 888 P.2d 155 (quoting State v. Vladovic, 99 Wash.2d 413, 423, 662 P.2d 853 (1983)). This rule is similar to the one established in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932):

[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

See also United States v. Dixon, 509 U.S. 688, 704, 113 S.Ct. 2849, 2860, 125 L.Ed.2d

556 (1993) (overruling Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), which had added to the same evidence test, and affirming Blockburger as the appropriate test).

Under the same evidence test, second degree felony murder and first degree manslaughter are not the same offense in law: each offense includes an element that is not included in the other. Manslaughter does not include as an element the underlying felony required to prove felony murder. The recklessness requirement of manslaughter is not an element of felony murder. But this does not end our inquiry.

C. Evidence of Contrary Legislative Intent

Although application of the Blockburger rule gives significant indicators of legislative intent, this test is not always dispositive of whether two offenses are the same. See Calle, 125 Wash.2d at 778, 780, 888 P.2d 155. The rule is not controlling where there is a "clear indication of contrary legislative intent." Id. at 778, 888 P.2d 155. But the rule establishes a presumption that may be overcome only by clear evidence of contrary intent. See id. at 780, 888 P.2d 155.

Schwab argues that we may find clear evidence that the legislature did not intend multiple punishments for one killing in the plain language of RCW 9A.32.010: under the definition of homicide, an unlawful homicide may be either murder or manslaughter. He urges that the legislature's intent is clear and overcomes the presumption accorded by the same evidence test.

Washington courts have on occasion found a violation of double jeopardy despite a determination that the offenses at issue clearly involved different legal elements. See State v. Johnson, 92 Wash.2d 671, 679-80, 600 P.2d 1249 (1979) (examining convictions for first degree rape, first degree kidnapping, and first degree assault and striking the kidnapping and assault convictions even though the offenses involve different legal elements because the...