State v. Woods

• Decision Date: 25 May 1983
• Docket Number: No. 11132-9-I,11132-9-I
• Citation: 34 Wn.App. 750,665 P.2d 895
• Parties: STATE of Washington, Respondent, v. Wiley J. WOODS, Appellant.
• Court: Washington Court of Appeals

Page 750

34 Wn.App. 750

665 P.2d 895

STATE of Washington, Respondent, v. Wiley J. WOODS, Appellant.

No. 11132-9-I.

Court of Appeals of Washington Division 1.

May 25, 1983.

Rehearing Denied June 20, 1983.

Review Denied Sept. 23, 1983.

Washington Appellate Defender Elizabeth Selleck, Seattle (court appointed), for appellant.

Norman K. Maleng, King County Pros. Atty., Frederick Yeatts, Deputy Pros. Atty., Seattle, for respondent.

CALLOW, Judge.

Wiley J. Woods appeals a judgment and sentence entered following a jury verdict finding him guilty of five counts of first degree robbery while armed with a deadly weapon, a firearm, and one count of first degree assault while armed with a deadly weapon, a firearm.

The following issues are presented:

(1) Does the application of RCW 9.95.040, the deadly weapon statute, to a prosecution for first degree robbery or first degree assault violate the double jeopardy clause by imposing multiple punishments for the same crime?

(2) Does the application of RCW 9.41.025, the firearm statute, to a prosecution for first degree robbery or first degree assault violate the double jeopardy clause by imposing multiple punishments for the same offense?

(3) Was the defendant denied effective assistance of counsel?

(4) Was defendant's statement to the police properly admitted into evidence?

(5) Was the pretrial lineup procedure wrongly suggestive requiring suppression of the eyewitnesses' identification of the defendant?

The defendant was charged by information with five counts of robbery in the first degree under RCW 9A.56.200 and two counts of assault in the first degree under RCW 9A.36.010. The charges arose out of a series of armed robberies in Seattle on August 30, 1981. The information also alleged that each of the offenses were committed by the defendant while armed with a deadly weapon pursuant to RCW 9.95.040, which was also a firearm pursuant to RCW 9.41.025.

Defendant, along with three others participated in a string of armed robberies between 6 a.m. and 7 a.m. on Sunday morning, August 31, 1981. The defendant drove the car to each of the three robbery locations, and he owned the guns used in the robberies and the assault. At approximately 6:15 a.m. that Sunday morning the first victim parked his car in an alley on Capitol Hill. The defendant and his three companions pulled in behind the victim's car; the defendant and another got out and came up to the victim's car, pointing guns at the victim, and the defendant Woods took the victim's wristwatch and wallet from him.

Defendant then drove his three companions to a donut shop in West Seattle. The defendant carried a .45 automatic while his companion was armed with a .38 revolver. The defendant jumped over the counter of the donut shop, pulling the .45 automatic from his pocket and banged on the cash register trying to open it. Defendant Woods stated, "This is a holdup, we want your wallets and all your money." Money and wallets were taken from three shop customers, and Woods withdrew to the automobile with his gun still drawn. Thereafter, the defendant went to a 7-11 store in West Seattle and entered this store with his .45 drawn. He leaped over the counter and pointed his gun at a store employee and after pulling the employee behind the counter, held the gun to the employee's head and pulled the trigger. The bullet hit this victim in the head and struck the victim's wife in the shoulder. After stealing the purse of the woman victim, the four companions fled south and were ultimately stopped by police on Interstate 5. A search of the defendant Woods pursuant to his arrest revealed the wristwatch stolen from the first victim. After being advised of his rights, Woods admitted he provided the .45 automatic and the .38 revolver for the morning's activities. He also admitted driving to the 7-11 store and firing a shot at the two clerks. Following the issuance of a search warrant the next day, a .45 automatic with four live rounds and an empty casing were found under the driver's seat of the vehicle as was a .38 revolver containing four live rounds.

Woods was ultimately found guilty by jury verdict of all five counts of first degree robbery and one count of first degree assault. One of the assault counts was dismissed by the trial court prior to submission of the case to the jury. The jury further returned special verdicts finding Woods to have been armed with a deadly weapon at the time of each offense and that the deadly weapon was a firearm. On December 18, 1981, Woods was sentenced to a maximum term of not more than 20 years on each count. Counts II, III, and IV are to be served concurrently, but consecutive to Count I. Counts V and VI are concurrent to each other, but are to be served consecutively to the other counts.

Woods now appeals the judgment and sentence of the trial court.

The first issue is whether the application of RCW 9.95.040, the deadly weapon statute, to a prosecution for first degree robbery or for first degree assault violates the double jeopardy clause by imposing multiple punishments for the same crime.

RCW 9A.56.200 states, in part:

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

(a) Is armed with a deadly weapon; or

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

(c) Inflicts bodily injury.

RCW 9A.36.010 states, in part:

(1) Every person, who with intent to kill a human being, or to commit a felony upon the person or property of the one assaulted, or of another, shall be guilty of assault in the first degree when he:

(a) Shall assault another with a firearm or any deadly weapon or by any force or means likely to produce death;

Woods was convicted of four counts of RCW 9A.56.200(1)(b), one count of RCW 9A.56.200(1)(b) or (c), and one count of RCW 9A.36.010(1)(a). He was also found by special verdict to have been in possession of a deadly weapon under RCW 9.95.040, which was a firearm under RCW 9.41.025, during the commission of each of the offenses. Woods contends that the special verdict finding subjected him to multiple punishments for the same offense in violation of the double jeopardy clauses of the United States and Washington State constitutions. He argues that a deadly weapon finding cannot be used both to convict him for offenses where the use of a firearm or deadly weapon is an element of the underlying offense and to enhance his punishment for those offenses. We disagree.

RCW 9.95.040 states, in part:

The following limitations are placed on the board of prison terms and paroles with regard to fixing the duration of confinement in certain cases, ... to wit:

(1) For a person not previously convicted of a felony but armed with a deadly weapon at the time of the commission of his offense, the duration of confinement shall not be fixed at less than five years.

RCW 9.95.040 does not offend the constitutional protection against double jeopardy by imposing multiple punishments based on a single deadly weapon finding even when applied to a defendant convicted of an offense where the use of a firearm or deadly weapon is an element of the underlying offense. State v. Mitchell, 32 Wash.App. 499, 648 P.2d 456 (1982); State v. Willoughby, 29 Wash.App. 828, 630 P.2d 1387 (1981); State v. Hayden, 28 Wash.App. 935, 627 P.2d 973 (1981); see State v. McKim, 98 Wash.2d 111, 653 P.2d 1040 (1982). RCW 9.95.040 does not create a separate criminal offense, and thus a separate punishment, but merely limits the discretion of the trial court and the Board of Prison Terms and Paroles in the setting of minimum sentences. State v. Claborn, 95 Wash.2d 629, 628 P.2d 467 (1981); In re Carle, 93 Wash.2d 31, 604 P.2d 1293 (1980); State v. Workman, 90 Wash.2d 443, 584 P.2d 382 (1978). Hence, RCW 9.95.040 is applicable to both first degree robbery and first degree assault cases.

The second issue presented is whether the application of RCW 9.41.025, the firearm statute, to a prosecution for first degree robbery or first degree assault violates the double jeopardy clause by imposing multiple punishments for the same offense.

The double jeopardy clause protects "an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense,' " Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1 (1978) (quoting Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957)). It also "protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); see State v. Claborn, supra 95 Wash.2d at 637, 628 P.2d 467. However, RCW 9.41.025, the firearm statute, does not unconstitutionally prescribe an additional or cumulative punishment for the same offense arising out of a single transaction. Rather, "[u]nder RCW 9.41.025, the trial court's discretion to suspend or defer sentence is limited if a special finding is entered by the trier of fact that the defendant was armed with a firearm." State v. Hattori, 19 Wash.App. 74, 82, 573 P.2d 829 (1978).

The Washington courts ... have construed RCW 9.41.025 as augmenting the penalty for one who commits a crime while armed with a firearm rather than as creating a separate crime. State v. Frazier, 81 Wash.2d 628, 503 P.2d 1073 (1972). In essence, our firearm enhancement provision insures that one convicted of committing a crime while armed with a firearm will in fact receive a 5-year minimum term by preventing the sentencing judge from deferring or suspending the sentence.

State v. Adlington-Kelly, 95 Wash.2d 917, 923, 631 P.2d 954 (1981). Hence, RCW 9.41.025 does not violate the constitutional prohibition against double jeopardy. State v. Foster, 91 Wash.2d 466, 478, 589 P.2d 789 (1979).

Moreover, even if RCW 9.41.025 is construed to create a separate crime, thereby imposing an additional or...