State v. Weber
| Decision Date | 28 December 2006 |
| Docket Number | No. 77395-5.,77395-5. |
| Citation | 159 Wn.2d 252,149 P.3d 646 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Charles Walter WEBER, Petitioner. |
Susan F. Wilk, Washington Appellate Project, Seattle, WA, for Petitioner.
Brian Martin McDonald, King County Prosecutor's Office, Seattle, WA, for Respondent.
¶ 1 A jury convicted petitioner Charles Walter Weber of first degree assault and second degree attempted murder stemming from the same shooting incident. Weber argues that the inclusion of his prior juvenile adjudications in his offender score during sentencing violates his due process rights and his right to a jury trial. He also argues that the Court of Appeals erred by vacating his second degree attempted murder conviction rather than his first degree assault conviction as the lesser offense for double jeopardy purposes. Finally, he argues that the prosecuting attorney committed three instances of misconduct requiring reversal of his convictions.
¶ 2 We hold that prior juvenile adjudications fall under the "prior conviction" exception in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and are not facts that a jury must find under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We also hold that, in this case, the lesser offense for double jeopardy purposes is the offense that carries the lesser sentence, which was Weber's attempted murder conviction. Finally, we hold that the prosecuting attorney did not commit misconduct that constitutes reversible error. We affirm the Court of Appeals.
¶ 3 In the early morning of March 18, 2003, Weber was at a friend's apartment with several people drinking beer. Weber and his friend, Nick Renion, started to argue with Gabriel Manzo-Vasquez (Manzo). During the argument, Weber pulled a gun on Manzo. Manzo escaped the apartment by jumping out of a bedroom window and ran to his vehicle. Weber followed Manzo outside and fired multiple shots at Manzo's vehicle. One of the bullets grazed Manzo's side, causing a slight injury.
¶ 4 When the police investigated the incident, Manzo told them that a man he knew as "Guero Loco" shot him. Verbatim Report of Proceedings (VRP) (June 17, 2003) at 39; VRP (June 19, 2003) at 25-26. "Guero Loco" translates as "crazy white guy" in English. VRP (June 17, 2003) at 41. Manzo provided the police with a physical description of Weber, including a description of the distinctive tattoo of "206" on the back of his neck. Id. at 39. Manzo identified Weber in a photo montage with 80 percent certainty and stated that he could be only 80 percent certain because he could not see the blacked out tattoo. At trial, Manzo identified Weber as his shooter and confirmed that he had the correct tattoo.
¶ 5 In a pretrial hearing, the trial court excluded testimony by Detective George Alvarez that he had previously met Weber specifically while investigating a crime involving Weber's brother but did not exclude evidence that the detective had previously met Weber. The trial court also excluded any evidence of gang membership but did not exclude evidence of "any marks that may have been observed by any witness or testimony of any marks that may currently be present on Mr. Webber [sic]." VRP (June 11, 2003) at 10. The State concedes that the prosecuting attorney committed misconduct by eliciting evidence covered by the motions to exclude and by making an improper argument in rebuttal closing argument but argues that the misconduct did not affect the outcome of Weber's trial. Br. of Resp't at 11, 15, 17.
¶ 6 The prosecuting attorney charged Weber with first degree attempted murder with a firearm, first degree assault with a firearm, first degree unlawful possession of a firearm, and possession of cocaine with intent to manufacture or deliver. Weber pleaded guilty to possession of cocaine with intent to deliver. A jury acquitted Weber of first degree attempted murder and instead found him guilty of second degree attempted murder with a firearm, as well as first degree assault with a firearm and first degree unlawful possession of a firearm.
¶ 7 At sentencing, the trial court declined to include Weber's prior juvenile adjudication for first degree attempted robbery in his offender score because it had "washed out" under a previous version of the Sentencing Reform Act of 1981(SRA), chapter 9.94A RCW. VRP (Aug. 8, 2003) at 15; Clerk's Papers (CP) at 171. The trial court also noted that Weber's other juvenile adjudication, for taking a motor vehicle without permission, was only "half a point" and did not factor into his offender score. VRP (Aug. 8, 2003) at 16. The trial court found that Weber's convictions for attempted murder and assault constituted double jeopardy and vacated the assault conviction as the lesser offense.
¶ 8 Weber appealed his convictions to the Court of Appeals, arguing that three instances of prosecutorial misconduct constituted reversible error. Br. of Appellant at 8-14. The State filed a cross appeal challenging the trial court's decision to vacate Weber's assault conviction as the lesser offense and the trial court's finding that Weber's juvenile attempted robbery adjudication "washed out." Br. of Resp't at 43-51. Weber replied that the inclusion of his prior juvenile adjudications in his offender score would violate his due process rights under the Fifth and Fourteenth Amendments and his right to a jury trial under the Sixth Amendment. Reply Br. of Appellant at 2-12.
¶ 9 In a partially published opinion, the Court of Appeals held that Weber's prior juvenile adjudication did not wash out and should have been included in his offender score. State v. Weber, No. 52911-1-I, slip op. (unpublished portion) at 25 (Wash. Ct. App. June 6, 2005). In so holding, the court concluded that juvenile adjudications fall under the prior conviction exception in Apprendi and that Weber's juvenile adjudications were "properly considered to calculate his offender score." State v. Weber, 127 Wash. App. 879, 892-93, ¶ 32, 112 P.3d 1287 (2005). The court reversed the trial court and vacated the attempted murder conviction as the lesser offense for double jeopardy purposes, and reinstated Weber's assault conviction. Id. at 882, ¶ 3, 112 P.3d 1287. Finally, the court held that although the prosecuting attorney committed misconduct, that misconduct did not constitute reversible error. Weber, slip op. (unpublished portion) at 15-22. We granted Weber's subsequent petition for review on all three issues. State v. Weber, 156 Wash.2d 1010, 132 P.3d 147 (2006).
A. Whether, under Apprendi's prior conviction exception, a trial court may include prior juvenile adjudications in an offender score calculation.
B. Whether second degree attempted murder or first degree assault is the "lesser" offense for double jeopardy purposes.
C. Whether prosecutorial misconduct caused Weber prejudice requiring reversal of his convictions.
A. Whether, under Apprendi's prior conviction exception, a trial court may include prior juvenile adjudications in an offender score calculation
¶ 10 Weber argues that the trial court's inclusion of his prior juvenile adjudications in his offender score violates his due process rights under the fifth and fourteenth amendments,1 and his jury trial rights under the sixth amendment2 to the United States Constitution. In Apprendi, the United States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added). In Blakely, the Court clarified that the relevant "statutory maximum" for Apprendi purposes "is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." 542 U.S. at 303, 124 S.Ct. 2531. In other words, "the relevant `statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." Id. at 303-04, 124 S.Ct. 2531.
¶ 11 Inclusion of Weber's juvenile adjudications in his offender score would undeniably increase his maximum sentence above the sentence supported by the jury's verdict. However, under Apprendi, only facts "[o]ther than the fact of a prior conviction" that increase a defendant's maximum sentence violate that defendant's constitutional rights. 530 U.S. at 490, 120 S.Ct. 2348. Thus, we must consider whether Weber's juvenile adjudications qualify as "prior convictions" under Apprendi's prior conviction exception.
¶ 12 The United States Supreme Court first carved out an exception for prior convictions in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). The Court held that recidivism is not a fact that a jury must find in order for a defendant's prior conviction to be used to enhance his or her sentence.
[T]he sentencing factor at issue here— recidivism—is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence.... [T]o hold that the Constitution requires that recidivism be deemed an "element" of petitioner's offense would mark an abrupt departure from a longstanding tradition of treating recidivism as "go[ing] to the punishment only."
Id. at 243-44, 118 S.Ct. 1219 () (citations omitted) (quoting Graham v. West Virginia, 224 U.S. 616, 629, 32 S.Ct. 583, 56 L.Ed. 917 (1912)). In Apprendi, the Court again recognized an exception for prior convictions based on Almendarez-Torres and observed that:
Both the certainty that procedural safeguards attached to any "fact" of prior conviction, and the reality that Almendarez-Torres did...
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