Opinion
No. 64527-7-I.
Filed: March 14, 2011.
Appeal from a judgment of the Superior Court for King County, No. 08-1-11631-6, Michael Hayden, J., entered November 23, 2009.
Reversed and remanded by unpublished opinion per Spearman, J., concurred in by Leach, A.C.J., and Lau, J.
Darnell Davis appeals the firearm sentence enhancement in connection with his robbery conviction, arguing that the jury instruction was reversible error because it constituted a comment on the evidence by the trial court and because it directed the jury's verdict on the issue of the firearm enhancement. We agree with Davis that the instruction was a comment on the evidence because it instructed the jury that if it found that the gun in question was a "temporarily inoperable firearm," it was a firearm, thereby resolving a disputed issue of fact reserved for the jury. We reverse the sentence enhancement and remand for resentencing.
FACTS
On September 8, 2008, Edward Page was walking home when Darnell Davis robbed him at gunpoint by pointing a black revolver at his chest and demanding, "Give me your shit." Davis took several items from Page. Davis's companion Sheriann Pam drove him to another neighborhood, where Davis encountered Emily Eberhart. Davis punched Eberhart and forcibly took her purse. Eberhart did not see a gun during the robbery. Pam and Davis then went to another location, where Davis robbed Emily Burton by pushing her to the ground and taking her purse. Davis got into Pam's car, but Burton saw the license plate number and called 911. When police stopped Pam's car, Davis ran away and was apprehended in the stairwell of a nearby building. Inside Pam's car, police found items taken from the victims and a black .38 caliber revolver under the front seat. The State charged Davis with three counts of robbery in the first degree and one count of unlawful possession of a firearm in the second degree. The State alleged that he was armed with a firearm during the commission of two of the robberies. At trial, Davis admitted to robbing Eberhart but claimed that another unidentified man had robbed Page and Burton. He denied having a gun or seeing one in Pam's car.
Pam pleaded guilty to three counts of robbery in the second degree.
A Washington State Patrol (WSP) technician testified that although rust and debris in the gun's hammer mechanism initially made the gun inoperable, she was able to fire the gun after lubricating it. When asked, "Okay, so you were able to test-fire the gun; is that correct?" she responded, "Eventually, yes." Based on the technician's testimony, the trial court requested the parties to draft a jury instruction addressing the temporary inoperability of the gun. The State proposed the same firearm definition for the two robbery counts involving the firearm enhancement: "A temporarily inoperable firearm or a disassembled firearm that can be rendered operational with reasonable effort and within a reasonable time period is a `firearm.'" Davis did not propose any additional instructions, but he took exception to jury instruction 19. This led to the following colloquy:
Judge: Well you, I would suggest the State did what I asked both of you to do, which was come up with . . .
[Defense counsel]: I understand that.
Judge: some language that could modify WPIC 2.10 for the circumstances of this case.
[Defense counsel]: Right. And it is not that I have an objection to the language, I guess I would be asking for no additional language.
Judge: Right. Well that would be overruled because what will happen in that case likely is that it will get a note back from the jury saying is a firearm that has to be oiled, a firearm? And then I will be put in a position of having to say either rely on the instructions you already have or giving them additional instructions. And if I give them additional instructions at that point, the problem is I risk commenting on any evidence, so
[Defense counsel]: Well I guess that was, to me this almost sounds like a comment on the evidence.
The trial court adopted the State's proposed language into jury instructions 19 and 20.
These instructions contained identical language, but referred to different counts of robbery. Although Davis argues that jury instruction 20 was error, we treat his argument as concerning jury instruction 19, because jury instruction 19 referred to the robbery count involving victim Edward Page. The jury found that he was carrying a firearm during that robbery only.
A jury convicted Davis of all three robbery counts and found that he was armed with a firearm during the robbery of Page. Davis waived his right to a jury trial on the unlawful possession charge and the trial court found him guilty. The court sentenced him within the standard range on all four counts: 150 months for each count of robbery in the first degree and 51 months for unlawful possession of a firearm in the second degree. Additionally, the court sentenced him to serve 60 consecutive months based on the firearm enhancement.
DISCUSSION
Davis makes two arguments relating to his claim of error in the jury instruction. First, he argues that the trial court's jury instruction on a "temporarily inoperable firearm" constituted a comment on the evidence because it instructed the jury that the handgun in question was a firearm. He also argues that the jury instruction directed the jury's verdict in violation of the Sixth Amendment of the United States Constitution and art. I, §§ 21 and 22 of the Washington constitution. We agree with Davis that the trial court commented on the evidence through the jury instruction, reverse the deadly weapon enhancement, and remand for resentencing.
Comment on the Evidence
The State contends that because Davis consented to the jury instruction, he waives the issue on appeal. But we will consider a claimed error in an instruction if giving such an instruction invades a fundamental right of the accused. State v. Green, 94 Wn.2d 216, 231, 616 P.2d 628 (1980). Art. IV, § 16 of the Washington State Constitution provides, "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." Because a comment on the evidence violates a constitutional prohibition, a party's failure to object or move for a mistrial does not foreclose the issue on appeal. State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997). Moreover, we note that during colloquy, Davis's defense counsel voiced a concern about the additional sentence in the jury instruction potentially being a comment on the evidence. We will consider Davis's claim regarding the jury instruction.
A jury instruction improperly comments on the evidence if it resolves a disputed issue of fact that should be decided by the jury. Becker, 132 Wn.2d 64-65. Here, the State was required to prove each element of the firearm enhancement beyond a reasonable doubt. State v. Hennessey, 80 Wn. App. 190, 194, 907 P.2d 331 (1995). It had to prove that Davis was armed with a "firearm" during the commission of the charged crimes. As to what could be considered a firearm, the jury instructions stated, in pertinent part:
A `firearm' is a weapon or device from which a projectile may be fired by an explosive such as gunpowder. A temporarily inoperable firearm or a disassembled firearm that can be rendered operational with reasonable effort and within a reasonable time period is a `firearm.'
The first sentence of this cited portion of the jury instructions contained substantially the same definition provided in RCW 9.41.010(7), which states that a firearm is a "weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder."
Courts have interpreted the ambiguous "may be" language to require that a gun be operable at some point in order to qualify as a firearm, but not necessarily during the commission of the crime. In State v. Padilla, 95 Wn. App. 531, 535, 978 P.2d 1113 (1999), we noted that the language "may be fired" indicated legislative intent that a gun rendered permanently inoperable is not a firearm because it is not ever capable of being fired, and held that a disassembled firearm that could be "rendered operational with reasonable effort and within a reasonable time period" was a firearm. In State v. Faust, 93 Wn. App. 373, 380, 967 P.2d 1284 (1998), we held that a gun that malfunctioned at the time of the crime still qualified as a firearm, and that the definition of a firearm under the firearm enhancement statute was not limited "to only those guns capable of being fired during the commission of the crime." See also State v. Berrier, 110 Wn. App. 639, 645-46, 41 P.3d 1198 (2002) (unloaded firearm qualified as firearm); State v. Releford, 148 Wn. App. 478, 489-92, 200 P.3d 729, rev. denied, 166 Wn.2d 1028 (2009) (evidence sufficient for jury to find that antique pistol missing parts amounting to ammunition at time of crime qualified as firearm); State v. Raleigh, 157 Wn. App. 728, 733-36, 238 P.3d 1211 (2010) (evidence sufficient to find that temporarily inoperable gun was firearm).
Here, in light of the testimony of the WSP technician that the gun was initially not operable, the second sentence of the cited portion of jury instruction 19 was included to clarify to the jury that if it found that the gun in question was temporarily inoperable, the gun was still a firearm if it could be rendered operational with reasonable effort and within a reasonable time period. However, the language of the instruction was ambiguous as to whether this qualifying phrase applied only to the latter term "disassembled firearm" or to both "disassembled firearm" and "temporarily inoperable firearm."
Davis argues that the jury instruction told the jury that a "temporarily inoperable firearm . . . is a `firearm,'" thus instructing the jury that if it found the gun in question to be a temporarily inoperable firearm, it was a firearm. He argues that the qualifying phrase "that can be rendered operational with reasonable effort and within a reasonable time period" applied only to "a disassembled firearm." Davis argues, furthermore, that while case law supports the proposition that a presently inoperable gun may be found to be a firearm, it does not require a jury to find in every case that such a gun is necessarily a firearm. He compares the instruction in this case to "to-wit" instructions given in cases where courts held that those instructions removed a disputed issue of fact from the jury's consideration.
Davis's argument relies on the "last antecedent rule" of statutory interpretation. Under the rule, a qualifying or modifying phrase refers to the last antecedent, and a comma before the qualifying phrase is evidence that the phrase applies to all antecedents. State v. Bunker, 169 Wn.2d 571, 578, 238 P.3d 487 (2010). The last antecedent rule is not applied inflexibly or taken as always binding. State v. Wofford, 148 Wn. App. 870, 882, 201 P.3d 389 (2009), rev. denied, 170 Wn.2d 1010, 245 P.3d 773 (2010). Courts do not apply the rule "if other factors, such as context and language in related statutes, indicate contrary legislative intent or if applying the rule would result in an absurd or nonsensical interpretation." Bunker, 169 Wn.2d at 578.
The State asks this court to reject the application of the last antecedent rule. It contends that an ordinary juror reading the instruction would interpret the qualifying phrase "that can be rendered operational with reasonable effort and within a reasonable time period" to apply to both "`a disassembled firearm'" and "`a temporarily inoperable firearm.'" The State points out that "operational" and "inoperable" share the same root word.
We hold that jury instruction 19 was a comment on the evidence because it instructed the jury that once it found that the gun was a "temporarily inoperable firearm," it was necessarily a firearm. This contravenes case law that holds that while a jury may find that a temporarily inoperable firearm is a firearm, it does not have to find that a temporarily inoperable firearm is a firearm. Here, the instruction removed from the jury's consideration whether the particular gun in question, in spite of its temporary inoperability, could be "rendered operational with reasonable effort and within a reasonable time period." The last antecedent rule supports Davis's reading of the instruction, and applying the rule does not result in an absurd or nonsensical interpretation. It is not absurd or nonsensical to construe the instruction as stating that as a matter of law, a temporarily inoperable firearm is a firearm.
A judicial comment in a jury instruction is presumed prejudicial, and the burden is on the State to show that Davis was not prejudiced, unless the record affirmatively shows that no prejudice could have resulted. State v. Levy, 156 Wn.2d 709, 725, 132 P.3d 1076 (2006). The State concedes that if we agree with Davis's proposed reading of jury instruction 19, a constitutional violation was committed and Davis was prejudiced, warranting the vacation of the 60-month firearm sentencing enhancement. The concession is well taken. The State's evidence regarding the gun in question suggested that it was a temporarily inoperable firearm. A WSP technician testified that although she could not initially fire the gun, she was able to fire it after lubricating it. Therefore the State cannot show that Davis was not prejudiced by an instruction that stated, in effect, that a "temporarily inoperable firearm . . . is a firearm." Accordingly, we reverse the portion of the judgment and sentence pertaining to the sentence enhancement and remand for resentencing.
Reversed and remanded for resentencing.