State v. Whitney

• Decision Date: 23 July 1987
• Docket Number: No. 53204-4,53204-4
• Citation: 108 Wn.2d 506,739 P.2d 1150
• Parties: STATE of Washington, Respondent, v. Alfred William WHITNEY, Petitioner.
• Court: Washington Supreme Court

Page 506

108 Wn.2d 506

739 P.2d 1150

STATE of Washington, Respondent, v. Alfred William WHITNEY, Petitioner.

No. 53204-4.

Supreme Court of Washington En Banc.

July 23, 1987.

Washington Appellate Defender Ass'n, Scott J. Engelhard, Seattle, for petitioner.

Norm Maleng, King County Pros. Atty., Barbara B. Linde, Deputy, Seattle, for respondent.

GOODLOE, Justice.

We address whether jury unanimity on one of the two alternative means charged is necessary in a first degree rape conviction. The Court of Appeals held jury unanimity is not necessary if each charged alternative is supported by substantial evidence. State v. Whitney, 44 Wash.App. 17, 720 P.2d 853 (1986). We affirm.

The relevant facts are set forth in the Court of Appeals opinion. Petitioner Alfred Whitney was charged by information with rape in the first degree in violation of RCW 9A.44.040(1)(a) and (b). RCW 9A.44.040(1) provides, in part:

(1) A person is guilty of rape in the first degree when such person engages in sexual intercourse with another person by forcible compulsion where the perpetrator or an accessory:

(a) Uses or threatens to use a deadly weapon or what appears to be a deadly weapon; or

(b) Kidnaps the victim; ...

At petitioner's trial, the court instructed the jury that in order to convict it must find beyond a reasonable doubt "the defendant used or threatened to use a deadly weapon or kidnapped [the victim]". (Italics ours.) Clerk's Papers, at 12. The court also instructed the jury on the need for a unanimous verdict. The jury found petitioner guilty of first degree rape.

The Court of Appeals affirmed holding that sufficient evidence supported the verdict. Whitney, at 20-21, 25, 720 P.2d 853. It held that the jury need not be unanimous as to the method by which the first degree rape was committed because sufficient evidence supported each alternate way of committing the crime charged. Whitney, at 23, 720 P.2d 853. The court reasoned that the alternative methods which are a part of first degree rape are not separate and distinct offenses but rather are alternate means by which one may commit the single offense of first degree rape. Whitney, at 23, 720 P.2d 853.

Petitioner concedes the prosecution produced sufficient evidence as to the use or threatened use of a deadly weapon and kidnapping to justify conviction. Nonetheless, petitioner moved for discretionary review arguing that the alternate ways of committing first degree rape involve separate crimes, and therefore, the jury must be unanimous as to the underlying crime in order to sustain the conviction.

Petitioner relies on the following language from State v. Green, 94 Wash.2d 216, 233, 616 P.2d 628 (1980) (Green II):

Where, as here, the commission of a specific underlying crime is necessary to sustain a conviction for a more serious statutory criminal offense, jury unanimity as to the underlying crime is imperative.

The defendant in Green was charged with aggravated murder, the death occurring either in the furtherance of kidnapping or rape. In an earlier decision in the same case, State v. Green, 91 Wash.2d 431, 588 P.2d 1370 (1979) (Green I), we applied the analysis of State v. Arndt, 87 Wash.2d 374, 553 P.2d 1328 (1976), and held that an instruction on jury unanimity was not required. Green I, 91 Wash.2d at 441-42, 588 P.2d 1370. In Arndt, we held that if substantial evidence supports each of the alternate means of committing the single crime charged, and the alternate means are not repugnant to one another, jury unanimity as to the mode of commission is not required. Arndt, 87 Wash.2d at 376-77, 553 P.2d 1328.

This court reconsidered Green I in Green II. The Green II court held that the State had failed to establish the element of kidnapping either by substantial evidence or beyond a reasonable doubt. Green II, 94 Wash.2d at 230, 616 P.2d 628. The court then stated, at page 232, 616 P.2d 628:

Our reliance on Arndt was largely dependent upon our conclusion that both the rape and kidnapping elements were supported by substantial evidence, a position we now reject insofar as the kidnapping issue is concerned. Our rejection of kidnapping leaves only rape as the remaining element. It is not possible to know whether the jury deemed that element established in the absence of some indication of jury unanimity on that critical issue. Clearly, Arndt is inapposite.

The present case differs from the situation in Green II in that both the kidnapping and the use or threatened use of a deadly weapon are supported by substantial, if not overwhelming, evidence.

The Green II court continued, however, and in dicta opined that reliance on Arndt was precluded for a "more fundamental reason." Green II, at 232, 616 P.2d 628. The Green II majority reasoned that the right to a jury trial provided under Const. art. 1, § 21 mandates jury unanimity in all cases where "the commission of a specific underlying crime is necessary to sustain a conviction for a more serious statutory criminal offense ..." Green II, at 233, 616 P.2d 628.

Petitioner argues that in this case the Court of Appeals misinterpreted Green II by restricting its application only to cases involving the sufficiency of evidence rather than recognizing its "more fundamental" basis for reversal. However, in State v. Franco, 96 Wash.2d 816, 823-24, 639 P.2d 1320 (1982), we stated:

The appellant cites to Green [II] for its proposition that separate jury verdicts are required. Green [II] is inapposite here, it dealt with an aggravated murder, the instruction directed the jury to find the defendant guilty if convinced beyond a reasonable doubt that

defendant caused the death of Kelly Ann Emminger in the course of or in furtherance of rape in the first degree or kidnapping in the first degree.

(Italics omitted.) Green [II] [94 Wash.2d] at 231 . Green [II] determined that there was insufficient evidence to find that there was a kidnapping and thus that issue should not have been submitted to the jury. In deciding on the effect of this, the court noted that, due to the absence of a unanimous jury determination that there was a rape or kidnapping or both, it was possible that some members of the jury based their votes on the invalid kidnapping grounds. Green [II] did not hold that in all cases of aggravated murder there must be separate jury verdicts regarding each method. That issue was not before the court.

(Some italics ours.)

In Franco, the defendant was charged with driving while intoxicated, which could be established by three alternative methods. Franco held that jury unanimity as to the method found was not necessary. Franco, at 824, 639 P.2d 1320. Petitioner asserts that the Franco court correctly applied the Arndt analysis to the facts in Franco because the alternate ways of committing DWI are not crimes. Petitioner maintains, however, that the Arndt analysis is not applicable when the underlying elements are crimes. Petitioner concludes that in this case it is impossible to know whether the jury unanimously agreed that either of the underlying crimes had been committed and, therefore, he was denied his constitutional right to a jury trial.

The State argues the right to a unanimous jury was satisfied when the jury unanimously found the petitioner guilty of the crime of rape in the first degree as charged. "When a defendant is charged under a criminal statute that describes a single offense committable in more than one way, rather than separate and distinct offenses, jury unanimity is unnecessary as to the means but ... [is necessary] as to the commission of the offense." (Citations omitted.) State v. Ellison, 36 Wash.App. 564, 574, 676 P.2d 531, rev. denied, 101 Wash.2d 1010 (1984) (defendant charged with premeditated and felony murder, both of which constitute first degree murder); Franco, 96 Wash.2d at 823, 639 P.2d 1320; Arndt, 87 Wash.2d 374 at 376-78, 553 P.2d 1328; State v. Wixon, 30 Wash.App. 63, 76, 631 P.2d 1033 (1981).

To determine whether a statute describes several multiple offenses or a single offense which may be committed in different ways, the following factors are considered: " the title of the act; whether there is a readily perceivable connection between the various acts set forth; whether the acts are consistent with and not repugnant to each other; and whether the acts may inhere in the same transaction." Arndt, 87 Wash.2d at 379, 553 P.2d 1328, quoting State v. Kosanke, 23 Wash.2d 211, 213, 160 P.2d 541 (1945). Under this test the Court of Appeals held that "the alternative means of committing first degree rape do not constitute separate and distinct offenses; indeed, the two means of committing first degree rape at issue here could inhere in the same incident, as we so find." (Citation omitted.) Whitney, 44 Wash.App. at 25, 720 P.2d 853. We recognize that kidnapping and the use or the threatened use of a deadly weapon, as in an assault may constitute crimes themselves. See Green II, 94 Wash.2d at 233, 616 P.2d 628; State v. Johnson, 92 Wash.2d 671, 675, 600 P.2d 1249 (1979), cert. dismissed, 446 U.S. 948, 100 S.Ct. 2179, 64 L.Ed.2d 819 (1980). However, when such conduct is involved in the perpetration of a rape and does not have an independent purpose or effect, it should only be punished as an incident of the rape and not additionally as separate crimes. See Johnson, 92 Wash.2d at 676, 600 P.2d 1249.

We reject the implication in Green II that because the underlying elements are crimes they necessarily have import as distinct offenses. The result of such characterization is that defendants charged with the same offense could be treated differently depending on whether or not the particular alternative methods they are charged with are labeled crimes. We note that the reasoning of Johnson, although primarily involving the issue of merger, aptly supports the conclusion that first degree rape describes a single offense. See Johnson, at 676, 600 P.2d 1249.

Washington law requires a...