State v. Summers
| Decision Date | 18 February 1993 |
| Docket Number | No. 58883-0,58883-0 |
| Citation | 846 P.2d 490,120 Wn.2d 801 |
| Parties | STATE of Washington, Respondent, v. Arthur Hinton SUMMERS, Petitioner. In The Matter of The Personal Restraint Petition of Arthur Hinton SUMMERS. |
| Court | Washington Supreme Court |
Washington Appellate Defender Ass'n., Irene Tanabe, Seattle, for petitioner.
Norm Maleng, King County Prosecutor, Theresa Fricke, Sr., County Prosecutor and Pamela Mohr, DeputyCounty Prosecutor, Seattle, for respondent.
PetitionerArthur Hinton Summers seeks review of a decision of the Court of Appeals, Division One which affirmed his 1989 conviction for violation of RCW 9.41.040, the Uniform Firearms Act, based on a 1976 predicate conviction of manslaughter in the first degree.He claims that the 1976 conviction was constitutionally invalid because the trial court failed to instruct the jury that the State bears the burden of proof upon a claim of self-defense; and that as a consequence of this failure, one element of RCW 9.41.040 is constitutionally invalid under 19771 and 19832 decisions of this court.We granted review and now reverse the Court of Appeals.
The principal question in this case is whether a prior conviction in 1976 for manslaughter in the first degree used in 1989 to prove one element of violation of RCW 9.41.040, the Uniform Firearms Act, is constitutionally invalid because of an instruction on self-defense in the 1976 case which became clearly contrary to decisions of this court only in 1983.3
The facts in the principal firearms case are not disputed.However, because Petitioner Summers' 1989 conviction for violation of the Uniform Firearms Act relied upon his 1976 conviction for first degree manslaughter, a review of the facts of that predicate case is necessary.
The following statement is quoted from Petitioner Summers' personal restraint petition which was consolidated with this appeal:
The incident giving rise to the charges in this case involved a tavern brawl between Mr. Summers and two sailors.On July 2, 1976, Mr. Summers was sitting in Smitty's, [a tavern at 7th Avenue and Pike Street in Seattle] drinking beer and listening to "soul" music when two sailors entered.The sailors were white men, and Mr. Summers is a black man.The sailors were quite intoxicated and made some disparaging remarks about the music and began harassing Mr. Summers with racial slurs.The exact nature of what followed was not clear to the witnesses, but one of the sailors struck Mr. Summers, and a fight ensued.Mr. Summers held out a knife and began slashing with it, as the other sailor broke a beer glass in Mr. Summers' face.An aid car was called for the two sailors.One of the sailors died from stab wounds and the other sailor was treated at the hospital for his injuries.Mr. Summers left the tavern and went to his hotel a few blocks away.When the police arrived, Mr. Summers gave a full account of what happened and was also taken to the hospital for his injuries.4
Petitioner Summers was later charged in the King County Superior Court with second degree murder for the death of John William Moloney and with second degree assault of William John Bruce.In a jury trial before the Honorable Frank J. Eberharter, the court on September 23, 1976, instructed the jury on the offense of second degree murder 5 and the lesser included offense of first degree manslaughter.6
On November 4, 1976, petitioner was convicted of the lesser offense of first degree manslaughter with use of a deadly weapon and was acquitted of the assault charge.Petitioner appealed.Appointed counsel filed an "Anders " brief.7Petitioner also challenged the manslaughter conviction in a postconviction petition alleging that the trial court erred in refusing his instructions on self-defense.8On August 3, 1978, in an unpublished opinion, the Court of Appeals affirmed the conviction and dismissed the petition.
The 1989 conviction for violation of the Uniform Firearms Act was based upon events occurring on October 14, 1988.Officer Verner O'Quinn and Sergeant Jay Daniel Miller of the Seattle Police Department were executing a narcotics search warrant at 1300 29th Avenue South in Seattle.The officers found petitioner inside the house and advised him of his rights.Petitioner then informed them of the location in the house of a rifle and a handgun, both of which he claimed belonged to his girl friend.He told the officers he had handled the handgun and that his fingerprints might be on it.9
Petitioner Summers was later charged by information filed in the King County Superior Court on February 27, 1989, with violating the Uniform Controlled Substances Act by the unlawful possession of cocaine "on or about October 14, 1988".10On June 22, 1989, an amended information was filed charging him with violation of the Uniform Firearms Act by unlawful possession of a .45 caliber pistol with a prior felony conviction of a crime of violence, and with violation of the Uniform Controlled Substances Act by unlawful possession of cocaine with intent to manufacture or deliver.11
On July 13, 1989, petitioner filed a motion to dismissthe Uniform Firearms Act violation.12The matter was heard before the Honorable Anne L. Ellington.In that motion, petitioner argued that the charge should be dismissed because his 1976 predicate conviction was unconstitutional by reason of alleged errors in jury instructions.13In denying the motion, the trial court stated that:
The Court of Appeals had the full record.That's the proper basis for a determination of constitutional invalidity as to the original verdict.This court is not in a position to examine a verdict merely by looking at instructions which were given and be able to determine from their face that they are not constitutionally adequate for the case in which they were given, and it seems to me that the clear policy which should form the decision of the court is that the jury's verdict, particularly after final affirmance on a final appeal, is established as a constitutionally valid prior conviction.
I think that the procedure followed here by Mr. Ellis was appropriate because this is a question of law for the court, not a question of fact for the jury, and it is appropriate to raise this matter for the court, but it seems to me that sound policy requires finality even on constitutional questions, and that was achieved when the Court of Appeals issued its opinion and no further review was sought.
So I reach the conclusion that a jury verdict which is up held [sic ] on final appeal is conclusive evidence of a constitutionally valid prior conviction.Motion to dismiss is denied.14
On July 19, 1989, the jury found Petitioner Summers guilty of the crime of possession of cocaine with intent to deliver.15On July 19, 1989, petitioner waived his right to trial by jury on the charge of violation of the Uniform Firearms Act.16On July 20, 1989, Judge Ellington after a hearing found Petitioner Summers guilty of the Uniform Firearms Act violation.She also found him guilty, upon the jury verdict, of possession of cocaine in violation of the Uniform Controlled Substances Act.17He was sentenced to 8 months' confinement for violation of the Uniform Firearms Act and 24 months' confinement for violation of the Uniform Controlled Substances Act, 18 the sentences to be served concurrently.19Additionally, the court imposed a 1-year term of community placement for both convictions.
On October 19, 1989, Petitioner Summers filed a notice of appeal to the Court of Appeals, Division One.On March 1, 1990, he filed a motion for continuance in anticipation of his intent to file a personal restraint petition related to his appeal.20On March 7, 1990, the Clerk of the Court of Appeals, Division One, granted the motion for continuance.On March 21, 1990, petitioner filed a personal restraint petition in the Court of Appeals, Division One.On April 23, 1990, he filed a motion to consolidate his appeal with the personal restraint petition previously filed.21
On July 9, 1990, the State of Washington(State) filed a motion for extension of time to file respondent's brief.The motion was granted on that same date.22
On October 14, 1991, the Court of Appeals, Division One, filed its opinion affirming the judgment of the trial court and dismissing the personal restraint petition.23On October 19, 1991, petitioner filed a motion for reconsideration of the decision of the Court of Appeals.24On November 20, 1991, the court entered an order denying that motion.
On January 9, 1992, petitioner filed a petition for review before this court.We granted review on March 3, 1992, 118 Wash.2d 1021, 827 P.2d 1392.
On October 20, 1989, petitioner was convicted of violation of the Uniform Firearms Act, RCW 9.41.040, 25 upon a 1976 predicate conviction for a crime of violence, manslaughter in the first degree, committed in the state of Washington.Former RCW 9.41.040 provides that:
(1) A person is guilty of the crime of unlawful possession of a short firearm or pistol, if, having previously been convicted in this state or elsewhere of a crime of violence or of a felony in which a firearm was used or displayed, the person owns or has in his possession any short firearm or pistol.
....
(3) As used in this section, a person has been "convicted" at such time as a plea of guilty has been accepted or a verdict of guilty has been filed, notwithstanding the pendency of any future proceedings including but not limited to sentencing, post-trial motions, and appeals.A person shall not be precluded from possession if the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted or the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
At...
To continue reading
Request your trial
-
State v. Ellison
...including use of a prior conviction for impeachment and use of a prior conviction to establish a minimum term. In State v. Summers, 120 Wn.2d 801, 846 P.2d 490 (1993), the State charged the defendant with unlawful possession of a firearm because he had a previous felony conviction for secon......
-
In re Personal Restraint of Haghighi
...Restraint of Hinton, 152 Wash.2d 853, 100 P.3d 801 (2004); State v. Hanson, 151 Wash.2d 783, 91 P.3d 888 (2004); State v. Summers, 120 Wash.2d 801, 846 P.2d 490 (1993); In re Pers. Restraint of Rupe, 115 Wash.2d 379, 798 P.2d 780 (1990). Similarly, the Court of Appeals has not questioned th......
-
State v. Ellison
... ... omitted). The court also noted that it refused to apply such ... a requirement in other situations, including use of a prior ... conviction for impeachment and use of a prior conviction to ... establish a minimum term ... In ... State v. Summers, 120 Wn.2d 801, 846 P.2d 490 ... (1993), the State charged the defendant with unlawful ... possession of a firearm because he had a previous felony ... conviction for second degree manslaughter. During the ... manslaughter trial, the trial court improperly refused to ... ...
-
State v. Lamb
...a reasonable doubt before the prior conviction could be admissible evidence in the current prosecution. See, e.g., State v. Summers, 120 Wash.2d 801, 810, 846 P.2d 490 (1993); State v. Chervenell, 99 Wash.2d 309, 312, 662 P.2d 836 (1983); State v. Holsworth, 93 Wash.2d 148, 159, 607 P.2d 84......