State v. Vladovic

• Decision Date: 28 April 1983
• Docket Number: No. 48656-5,48656-5
• Parties: STATE of Washington, Respondent, v. John Anthony VLADOVIC, Petitioner.
• Court: Washington Supreme Court

Page 413

99 Wn.2d 413

662 P.2d 853

STATE of Washington, Respondent, v. John Anthony VLADOVIC, Petitioner.

No. 48656-5.

Supreme Court of Washington,

En Banc.

April 28, 1983.

Michael A. Frost, Seattle, for petitioner.

Norman K. Maleng, King County Prosecutor, David W. Merrell, Deputy Pros. Atty., Seattle, for respondent.

DIMMICK, Justice.

We here review an unpublished opinion of the Court of Appeals affirming the conviction of John Anthony Vladovic for attempted robbery in the first degree, robbery in the first degree, and four counts of kidnapping in the first degree. The court also struck the finding that Vladovic was armed with a firearm on both robbery counts. We affirm the Court of Appeals.

This case arises from an incident at Bagley Hall on the University of Washington campus. An armed man wearing a ski mask entered the chemistry department at Bagley Hall. He secured the area by gathering the five employees from various offices into one room, forcing them to lie on the floor, binding their hands and taping their eyes. The armed man then admitted one or more confederates. The robbers removed the employees' wallets from their pockets but left the wallets at the scene. After the incident one employee, Mr. Jensen, discovered $12 was missing. When apprehended, petitioner had $30 on his person.

One robber took Mr. Jensen, the storeroom manager, into another room where the chemistry department's safe was kept. The safe contained $7,000 worth of platinum crucibles. The robber, unable to open the safe, began to unbind Mr. Jensen so that he could open the safe. The police then arrived. The robber who was wearing the green ski mask disappeared. Another robber, wearing a different colored ski mask, exchanged gunfire with the police and then surrendered. When apprehended he was still wearing the ski mask. This man was identified as Robert May, petitioner's codefendant at trial.

Petitioner was apprehended as he walked out of the storeroom on the same floor where the above events took place. He was not wearing a mask at the time, nor was he armed. A gun and green ski mask were later found in the same general area where petitioner had been found. Petitioner testified that he was in Bagley Hall to meet a student and was forced into the storeroom by one of the robbers. He also testified that during his captivity he saw several armed men escape through a tunnel system running under the university campus when the police arrived.

The arresting officer testified that upon his arrest petitioner made several inculpatory statements. Petitioner denied making those statements.

The jury found petitioner guilty of attempted robbery in the first degree for attempting to steal the contents of the safe, robbery in the first degree for stealing money from Mr. Jensen's wallet, and four counts of kidnapping in the first degree for restraining the chemistry department employees by using or threatening to use deadly force. Petitioner was not charged with kidnapping Mr. Jensen. The jury entered special verdicts finding that petitioner was armed with a deadly weapon which was a firearm during the commission of all the offenses. Petitioner was sentenced to 10 years' imprisonment for attempted robbery life imprisonment for robbery, and life imprisonment for three of the kidnapping counts, all to run concurrently. Petitioner was also sentenced to 20 years' imprisonment for the remaining count of kidnapping, to run consecutively with the other sentences.

Petitioner's counsel, deeming the appeal to be without merit, moved to withdraw before the Court of Appeals pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, reh'g denied, 388 U.S. 924, 87 S.Ct. 2094, 18 L.Ed.2d 1377 (1967) and State v. Koehler, 73 Wash.2d 145, 436 P.2d 773 (1968). The Court of Appeals granted that motion. Petitioner filed a pro se brief. The Court of Appeals affirmed the convictions and sentences but struck the sentence enhancement under the firearm statute, RCW 9.41.025, as to the counts of robbery and attempted robbery. We granted the petition for review and appointed an attorney to prepare a supplemental brief.

I

The primary issues presented by this appeal are whether the doctrine of merger or the constitutional guaranty against double jeopardy prohibits multiple convictions for attempted robbery, robbery and kidnapping. We hold that the offenses do not merge nor does double jeopardy apply. Several other issues will also be discussed including petitioner's challenge to the sufficiency of the evidence and his challenge to the special verdicts finding he was armed with a firearm.

Petitioner was convicted of robbery in the first degree, attempted robbery in the first degree and kidnapping in the first degree pursuant to the following statutes:

A person commits robbery when he unlawfully takes personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial.

RCW 9A.56.190.

(1) A person is guilty of robbery in the first degree if in the commission of a robbery or of immediate flight therefrom, he:

* * *

(b) Displays what appears to be a firearm or other deadly weapon ...

RCW 9A.56.200.

(1) A person is guilty of an attempt to commit crime if, with intent to commit a specific crime, he does any act which is a substantial step toward the commission of that crime.

RCW 9A.28.020.

(1) A person is guilty of kidnaping in the first degree if he intentionally abducts another person with intent:

* * *

(b) To facilitate commission of any felony or flight thereafter ... [The underlying felony charged hereunder was the robbery of Mr. Jensen.]

RCW 9A.40.020.

The following definitions apply in this chapter:

(1) "Restrain" means to restrict a person's movements without consent and without legal authority in a manner which interferes substantially with his liberty. Restraint is "without consent" if it is accomplished by (a) physical force, intimidation, or deception, ...

(2) "Abduct" means to restrain a person by ... (b) using or threatening to use deadly force ... ¹

RCW 9A.40.010.

Petitioner urges that his kidnapping convictions must be vacated. He asserts that his kidnapping convictions "merge" into his convictions for robbery and attempted robbery.

The leading case in this state on the merger doctrine as applicable here ² is State v. Johnson, 92 Wash.2d 671, 600 P.2d 1249 (1979) (Johnson I). In that case, the defendant was convicted of two counts each of first degree rape, first degree kidnapping and first degree assault. The basis for these convictions was a single incident during which the defendant threatened and restrained two girls in order to rape them. The applicable first degree rape statute required the State to prove conduct constituting at least one additional crime other than rape in order to prove first degree rape. Kidnapping and assault were both listed as such additional crimes, although no particular degree was required. This court held that the assaults and kidnappings were merely incidental to and not separate and distinct from the rapes. Because proof of the assaults and kidnappings were necessary elements to prove first degree rape, they merged into the rape and were not separably punishable.

This analysis is in accord with Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). The defendant there was convicted both of rape and of murdering the same victim in the perpetration of the rape. The first degree murder statute at issue required proof that the murder was done in the course of six specified felonies, including rape. The Court held that since proof of rape was necessary to prove first degree murder under the statutory scheme, Congress had not authorized cumulative punishment for the rape and the killing committed in the course of the rape.

We recently explained our holding in Johnson I regarding merger as follows:

State v. Johnson, supra, held that first degree rape, kidnapping and assault merged into one crime, that of first degree rape. The issue was the "pyramiding" of charges as a way of inflaming the jury when the legislature had clearly intended, in enacting statutes distinguishing different degrees of rape as class A, B, or C felonies, to punish defendant only once for the assault and/or kidnapping attending the first degree rape.

The legislature, we determined, intended not to allow the prosecutor to obtain convictions on the separate crimes, but rather to increase the punishment level for first degree rape by making other criminal conduct incident to that rape an aggravating factor leading to a class A felony. Since the same evidence (of the attendant assault and kidnapping) is required to convict of first degree rape, according to the intent of the legislature and our same evidence test, those crimes merged into the higher degree of the crime.

But Johnson is not determinative of the case before us, as proof of the separate act preceding the statutory rape was not necessary to proof of the statutory rape, and the legislature has not designated that the separate acts should merge.

State v. Johnson, 96 Wash.2d 926, 936, 639 P.2d 1332 (1982) (Johnson II).

The conclusion reached in Johnson II applies in this case. Proof of kidnapping is not necessary to prove the robbery or attempted robbery. Thus we cannot conclude that the Legislature intended that the offenses of robbery and attempted robbery merge into a kidnapping conviction.

Our only apparent divergence from the above analysis occurred in State v. Allen, 94 Wash.2d 860, 621 P.2d 143 (1980), which petitioner relies upon. In Allen we determined that, under the...