State v. Williams-Walker

• Decision Date: 14 January 2010
• Docket Number: No. 78611-9.,No. 79074-4.,No. 78876-6.,78611-9.,78876-6.,79074-4.
• Citation: 167 Wash.2d 889,225 P.3d 913
• Parties: STATE of Washington, Respondent, v. Aro T.J. WILLIAMS-WALKER, Petitioner. State of Washington, Respondent, v. Curtis Eugene Graham, Petitioner. State of Washington, Respondent, v. Matthew Robert Ruth, Petitioner.
• Court: Washington Supreme Court

225 P.3d 913

167 Wash.2d 889

STATE of Washington, Respondent, v. Aro T.J. WILLIAMS-WALKER, Petitioner.

State of Washington, Respondent, v. Curtis Eugene Graham, Petitioner.

State of Washington, Respondent, v. Matthew Robert Ruth, Petitioner.

No. 78611-9.

No. 78876-6.

No. 79074-4.

Supreme Court of Washington, En Banc.

Argued February 10, 2009.

Decided January 14, 2010.

Susan Marie Gasch, Gasch Law Office, Spokane, WA, Susan F. Wilk, Washington Appellate Project, Andrew Peter Zinner, Nielsen Broman Koch PLLC, Seattle, WA, for Petitioners.

Thomas Marshal Curtis, Snohomish County Prosecutor's Office, Everett, WA, Steven J. Tucker, Mark Erik Lindsey, Spokane County Prosecutor's Office, Spokane, WA, for Respondents.

Jeffrey Erwin Ellis, Ellis Holmes & Witchley PLLC, Seattle, WA, Amicus Curiae on behalf of Washington Association of Criminal Defense Lawyers.

C. JOHNSON, J.

¶ 1 In these consolidated cases, five-year firearm enhancement sentences were imposed on the defendants, where the juries were instructed and asked to find by special verdict whether the defendants were armed with a deadly weapon. We must decide, first, whether this sentence was an error and, second, whether under article I, sections 21 and 22 of the Washington Constitution, this type of error is subject to a harmless error analysis. We hold that this sentence is an error to which the harmless error doctrine does not apply. In State v. Williams-Walker, noted at 132 Wash.App. 1009, 2006 WL 701942, the Court of Appeals vacated a five-year firearm enhancement. In State v. Graham, noted at 132 Wash.App. 1053, 2006 WL 1237275, and State v. Ruth, noted at 134 Wash.App. 1018, 2006 WL 2126311, the Court of Appeals upheld five-year firearm enhancements based on harmless error. We affirm in Williams-Walker and reverse Graham and Ruth; we remand for resentencing consistent with this opinion.

FACTS

A. State v. Williams-Walker

¶ 2 On August 26, 2002, Aro Té Jhon Williams-Walker and Carlos Fuentes arranged to meet with and sell illegal drugs to Ty Hardin, Gene Chamberlin, and Jackie Karol. During the sale, Williams-Walker or Fuentes¹ shot Chamberlin with a .22 caliber semiautomatic pistol and then fled, and Chamberlin died before medical help arrived.

¶ 3 The State charged Williams-Walker with first degree robbery and first degree murder, as a principal or accomplice in felony murder, with a firearm enhancement. At trial, the jury was provided a special verdict form that asked, "[w]as the defendant armed with a deadly weapon at the time of the commission of the crime . . . ?" CP (Williams-Walker) at 287-89 (emphasis added). The jury answered the special verdict form in the affirmative. The trial court sentenced Williams-Walker to 381 months, including a 60-month firearm enhancement. The Court of Appeals, Division Three, affirmed Williams-Walker's conviction, reversed the sentencing enhancement, and remanded for resentencing consistent with the deadly weapon special verdict. Williams-Walker, 2006 WL 701942.

B. State v. Graham

¶ 4 The State charged Curtis Eugene Graham with one count of first degree assault with a firearm and one count of unlawful possession of a firearm in the second degree. The information alleged that on January 14, 2004, Graham assaulted Mohammed Sylla, with a .380 caliber pistol.

¶ 5 At trial, a deadly weapon special verdict form was provided to the jury because the State sought a sentencing enhancement. Regarding the special verdict, the trial court instructed the jury that the State must prove beyond a reasonable doubt that the defendant was armed with a deadly weapon at the time of the assault. The jury returned the special verdict form indicating it found that Graham was armed with a deadly weapon during the commission of first degree assault. CP (Graham) at 9.

¶ 6 The trial court sentenced Graham to 121 months for the first degree assault conviction and added a 60-month firearm enhancement based upon the deadly weapon special verdict. The Court of Appeals affirmed Graham's conviction and sentence. Graham, 2006 WL 1237275.

C. State v. Ruth

¶ 7 Matthew Robert Ruth was charged with two counts of first degree assault with a firearm, specifying Ruth was armed with a firearm during the commission of an assault against Drew Eden and Daniel Custer on November 5, 2003.

¶ 8 At trial, the special verdict form asked the jury to determine whether the defendant was armed with a deadly weapon during the commission of the offenses. The jury answered in the affirmative.

¶ 9 At sentencing, based upon the jury's special verdict finding, the trial court applied the 60-month firearm enhancement to each count. The Court of Appeals, Division One, in a per curiam opinion, affirmed Ruth's conviction and sentence. Ruth, 2006 WL 2126311.

D. Petitions for Review

¶ 10 We granted review in each case solely as to the issue of the firearm sentence enhancement and consolidated the three cases under State v. Williams-Walker, 163 Wash.2d 1059, 187 P.3d 753 (2008). We deferred review pending the United States Supreme Court's decision in Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) (Recuenco II). In Recuenco II, 548 U.S. at 222, 126 S.Ct. 2546, the Court held a harmless error analysis may be applied to Blakely errors for Sixth Amendment purposes. The Court noted that whether a Blakely error was subject to harmless error under a state constitutional analysis remained an open question. Blakely v. Washington, 542 U.S. 296, 318, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

¶ 11 In supplemental briefs, Ruth and Graham argued this court should hold that harmless error does not apply to Blakely violations under a state constitutional analysis. Ruth, Graham, and Williams-Walker incorporated one another's arguments pursuant to RAP 10.1(g).

ISSUES

(A) Did the trial courts violate the defendants' state constitutional right to a jury trial when they imposed firearm enhancements after the juries found by special verdict that the defendants committed their crimes using deadly weapons?

(B) Under our statutes and precedent, may harmless error analysis apply in the above situation?

ANALYSIS

(A) Did the trial courts violate the defendants' right to a jury trial?

¶ 12 Our state constitution provides that "[t]he right of trial by jury shall remain inviolate. . . ." CONST. art. I, § 21. Our prior cases have held this language to establish that in some circumstances, our state constitution provides greater protection for jury trials than the federal constitution. State v. Smith, 150 Wash.2d 135, 151, 75 P.3d 934 (2003) (stating that the textual differences between the federal and state constitutions indicate the general importance of the right to jury trial in the Washington Constitution); see also City of Pasco v. Mace, 98 Wash.2d 87, 99, 653 P.2d 618 (1982) (noting that "our state constitution was more extensive than that which was protected by the federal constitution when it was adopted in 1789").² But under both the Sixth Amendment to the United States Constitution and article I, sections 21 and 22 of the Washington Constitution, the jury trial right requires that a sentence be authorized by the jury's verdict.

¶ 13 The United States Supreme Court held, "Other 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." Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Blakely, the Court clarified this rule, holding "that the `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. Even before the Court decided Apprendi, we provided similar protections. In State v. Frazier, we held:

Where a factor aggravates an offense and causes the defendant to be subject to a greater punishment than would otherwise be imposed, due process requires that the issue of whether that factor is present, must be presented to the jury upon proper allegations and a verdict thereon rendered before the court can impose the harsher penalty.

81 Wash.2d 628, 633, 503 P.2d 1073 (1972). The failure to submit a sentencing factor to a jury for a finding thus violates a defendant's right to a jury trial under both the federal and state constitutions.

¶ 14 Three statutory provisions govern sentence enhancements based on the defendant's use of a firearm or other deadly weapon. Former RCW 9.94A.510(3), (4) 2001, specified two separate sentence enhancements: five years when a firearm was used to perpetrate a class A felony³ and two years when a "deadly weapon other than a firearm" was used to commit a class A felony.⁴ Different jury findings thus authorize different sentence enhancements.⁵ A third provision, former RCW 9.94A.602 (2001), clarified that "deadly weapon" includes firearms and requires a jury to find the defendant's use of such a weapon by special verdict.⁶ Taken together, these provisions establish that while a jury must find by special verdict a defendant's use of both types of deadly weapons (firearms and others), in order to authorize either the firearm or deadly weapon enhancement, the finding also must specify the type of weapon used. Where a jury finds by special verdict that a defendant used a "deadly weapon" in committing the crime (even if that weapon was a firearm), this finding signals the trial judge that only a two-year "deadly weapon" enhancement is authorized, not the more severe five-year firearm enhancement. When the jury makes a finding on the lesser enhancement, the sentencing judge is bound by the jury's determination.

¶ 15 We have recognized that a sentencing court violates a defendant's right to a jury trial if it imposes a firearm enhancement without a jury authorizing the enhancement by explicitly finding that,...