Winchester v. Stein

Citation135 Wn.2d 835,959 P.2d 1077
Decision Date30 July 1998
Docket NumberNo. 65553-7,65553-7
Parties, RICO Bus.Disp.Guide 9575 Marlene WINCHESTER, Personal Representative of the Estate of Thelma Lund, deceased, Respondent, v. John Kenneth STEIN, a/k/a Jack Stein, and Michael Lynn Norberg, Petitioners. STATE of Washington ex rel. Arthur D. CURTIS, Respondents, v. John Kenneth STEIN, a/k/a Jack Stein, and Michael Lynn Norberg, Petitioners, Gordon Wayne Smith and Richard Douglas Bailey, Defendants.
CourtUnited States State Supreme Court of Washington
Christine Gregoire, Attorney General, Frederick Caruso, Assistant Attorney General, Olympia, Amicus Curiae on behalf of the Attorney General

Gordon Smith, Walla Walla, Richard Bailey, Monroe, Bethany Norberg, Portland, Kenneth Selander, Nancy L. Talner, Seattle, for Petitioners.

Arthur Curtis, Clark County Prosecutor, Dennis Hunter, Deputy Clark County Prosecutor, Vancouver, Walstead, Mertsching, Husemoen, Donaldson & Barlow, Longview, Charles Wiggins, Bainbridge Island, for Respondent.

GUY, Justice.

In this case, we are asked whether an action brought under our state's Criminal Profiteering Act for monetary damages to victims of crime and other penalties violated the double jeopardy rights of those parties who had been previously tried in criminal proceedings.

FACTS

There is a large record in this case, but only a brief description of the facts is necessary to understand the legal issue before us. Ned Hall, a probate attorney in Vancouver, served as Nick Stein's attorney for a number of years in matters involving Nick's property. Nick's son, Jack Stein Testimony indicates that Jack Stein asked his stepson, Michael Norberg, to hire "hitmen" to kill Ned Hall, Thelma Lund, Judge Lodge, and others. Norberg hired Richard Bailey and Gordon Smith. In April 1987, Thelma Lund was severely beaten and strangled to death in her home. In June 1987, several attempts were made to murder Ned Hall.

opposed Mr. Hall's legal position on a number of matters involving his father's property. Nick Stein, with Mr. Hall's assistance, was successful in having a bank appointed as the trustee for Nick Stein's significant estate. The trustee bank and Ned Hall, on behalf of Nick Stein, brought an action to have a transfer of a real estate contract from Nick Stein to Jack Stein set aside on the basis of fraud and undue influence. Thelma Lund, a long-time friend of Nick Stein, testified on behalf of the limited guardian and adversely to Jack Stein. The trial judge, Tom Lodge, set aside the transfer on the basis of undue influence and ruled against Jack Stein in several other lawsuits regarding his father's property.

Jack Stein was convicted of three counts of attempted murder in the first degree and one count of burglary in the first degree with regard to the attempts on Hall's life and was found not guilty of the murder of Lund. Norberg pleaded guilty to conspiracy to commit murder in the second degree. Smith pleaded guilty to conspiracy to murder and to attempting to murder Hall. Bailey pleaded guilty as an accomplice to the murder of Thelma Lund and the attempted murder of Ned Hall.

The estate of Thelma Lund filed a wrongful death action against Jack Stein and Michael Norberg and the State filed a criminal profiteering action against Jack Stein, Michael Norberg, Richard Bailey and Gordon Smith. The trial court consolidated the two actions and the case was tried to a jury.

Michael Norberg's statement on plea of guilty was admitted into evidence. He stated that Jack Stein had asked him to find "hitmen" to kill certain people and that between The jury found in favor of Thelma Lund's estate in the wrongful death action and in favor of the State in the criminal profiteering action. The jury concluded by special verdict that: (1) Stein, Norberg and Bailey had conspired to commit murder between 1984 and 1987; (2) Stein, Norberg and Bailey had attempted to commit murder in the first or second degree or extortion in the first degree on April 13, 1987; (3) Stein, Norberg and Bailey had caused the death of Thelma Lund on April 13, 1987; (4) the total damages for injury to the person, the estate or heirs of Thelma Lund was $4,000,000; (5) Stein, Norberg, Bailey and Smith had attempted to commit murder in the first degree on June 1, 1987; (6) Stein, Norberg, Bailey and Smith had attempted to commit murder in the first degree between June 1 and 14, 1987; (7) Stein, Norberg, Bailey and Smith had attempted to commit murder in the first degree on June 14, 1997; (8) Stein, Norberg, Bailey and Smith had engaged in the act of criminal profiteering as defined in the court's instructions; (9) Stein, Norberg, Bailey and Smith had engaged in a pattern of criminal profiteering activity as defined in the court's instructions; (10) the total amount of damages for injury to the person or property of Ned Hall Pursuant to RCW 9A.82.100(4)(d), the trial court trebled the damages due the victims, adding $8,000,000 to be held in trust for the benefit of Lund's estate. The trial court also awarded the following amounts to the State: $24,600 to be held in trust for Ned Hall as treble damages; $223,894.19 for the cost of investigation and prosecution; $250,000 as a civil penalty under the Criminal Profiteering Act payable to the Clark County Anti-Criminal Profiteering Revolving Fund; and $38,301 for costs, disbursements, and attorney fees incurred by the State. Stein and Norberg appealed and the Court of Appeals affirmed all aspects of the judgment except the $250,000 penalty. Winchester v. Stein, 86 Wash.App. 458, 937 P.2d 618, review granted in part, 133 Wash.2d 1010, 946 P.2d 403 (1997).

                1983 and 1986, Jack Stein told him that several people, including Ned Hall, Judge Lodge, and Thelma Lund were causing problems for him.  Jack Stein told Norberg that he would provide money if Norberg could locate people who would eliminate those people causing Jack his problems.  The money to be paid was $10,000 for each person on the "list."   He stated that Jack Stein had told him that Ned Hall was getting in the way of Jack's plans to handle Nick Stein's money and property.  Norberg stated that Bailey and Jack Stein had also discussed blowing up the Clark County courthouse with a bomb in order to kill Judge Lodge.  Jack Stein's psychologist testified that Jack Stein had told him he wanted to obtain hitmen to kill Judge Lodge and Ned Hall.  Another witness testified that Michael Norberg and Jack Stein offered him $10,000 to kill Thelma Lund and $10,000 to kill the attorney who represented Nick Stein
                was $8,200;  (11) the costs and expenses incurred in the investigation and prosecution had been $223,894.19
                

In the Court of Appeals, Stein and Norberg raised the following issues: whether the State's action under the Criminal Profiteering Act violated double jeopardy, whether the judgments were excessive, whether the court erred in denying Stein's request for a separate trial from Norberg and in consolidating the profiteering and the wrongful death actions, and whether the court erred in admitting a letter from Stein's psychologist which had reported that Stein had told him he wanted to hire a "hitman" to kill his father's lawyer, Ned Hall, and a judge who had ruled against him. The Court of Appeals, relying on United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), concluded that neither the treble damages to the murdered woman's estate nor the award to the State for the costs of the criminal or civil litigation was punishment for purposes of the double jeopardy doctrine, but that the $250,000 civil penalty was solely punishment and therefore barred by double jeopardy. Winchester, 86 Wash.App. at 464, 937 P.2d 618. The Court of Appeals affirmed the trial court on all other issues, concluding that the damages to the murdered woman's estate were not excessive, that the trial court properly denied the motion to sever the trials and properly Jack Stein sought review of the Court of Appeals decision and the State sought review of that part of the Court of Appeals decision that reversed the civil penalty. We accepted review. The attorney representing the estate of Thelma Lund filed a motion seeking clarification of the issues before this Court. We granted the motion to clarify the issues and entered an order stating:

consolidated the actions, and that the testimony of the psychologist was properly admitted.

Review is limited to the issues of whether the exemplary damages and civil penalty awarded in the State's criminal profiteering action violate double jeopardy principles. The parties are further directed to submit supplemental memoranda discussing the effect on this case of the United States Supreme Court's decision in Hudson v. United States, [522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) ].

As a result of this order, the estate of Thelma Lund is no longer appearing in this appeal and the only issue on review is double jeopardy.

ISSUE

Does an action brought under the Washington Criminal Profiteering Act, RCW 9A.82, for treble damages to the victims of crime and for other sanctions following a criminal proceeding violate the double jeopardy clause?

DISCUSSION

Whether an action for civil sanctions following a criminal conviction violates double jeopardy is an issue of law which is reviewed de novo. E.g., LaCrosse v. Commodity Futures Trading Comm'n, 137 F.3d 925 (7 th Cir.1998); United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 566 (9 th Cir.1995).

Article I, section 9 of the Washington Constitution states: "No person shall be compelled in any criminal case to give evidence against himself, or be twice put in jeopardy for the same offense." The double jeopardy clause of the federal constitution provides that no person shall be "subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V.

The Supreme Court has declared that " 'Congress may impose both a...

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