Opinion
No. 64174-3-I.
September 20, 2010. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for King County, No. 09-1-04168-3, Richard D. Eadie, J., entered August 24, 2009.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Lau, J., concurred in by Grosse and Appelwick, JJ.
Dexter Nance pleaded guilty to four counts of tampering with a witness — domestic violence in violation of RCW 9A.72.120. The sentencing court imposed 43 months concurrent sentences on each count. Nance appeals his judgment and sentence, arguing that the multiple convictions for witness tampering violate double jeopardy. Because the multiple convictions for witness tampering constitute one unit of prosecution under the facts here, we reverse three of the four convictions and remand for proceedings consistent with this opinion.
FACTS
Nance and Soraya Womack dated for approximately six months. On February 3, 2009, Womack called 911 to report that Nance had punched her several times and threatened to kill her. Nance was charged with assault and arrested two days later. While in the King County jail on the assault charge, Nance made numerous calls to his girl friend, Rachel, and others to influence Womack's testimony in the assault case.
The facts based on the statement of probable cause are not disputed.
This opinion uses first names only when the record identifies no last names.
On February 6, 2009 (count I), Nance called Rachel and told her he needed his friend Rochelle to come to the jail. He also told Rachel, "I need Tweety to get in contact with [Womack], sit down with her have lunch or dinner and get with her to tell her not to come to court." He then asked Rachel to make a three-way call to Rochelle. Nance talked to Rochelle. He told Rochelle he wanted her to visit him and that he would send a letter telling her what to do. He also told her, "[Womack] has a police report out against me. The police report said that I'm a known gang member and I beat her up over some drugs." Rochelle then hung up and Nance continued talking to Rachel. Nance told Rachel, "I need you as my star witness, my number 1 witness." He also said, "You are my witness. I was with you at home." Rachel said, "If [prosecutors] ask me what I drive I'll say I drive a silver Acura Integra." He then told her to write him a letter reminding him about the plan. Later that day, Nance called Rachel again. He told her to tell Womack what to say and what to do.
The next morning, on February 7, 2009 (count II), Nance called Rachel again. He told her he had a plan. He told her that she should bring him his cell phone so he could obtain phone numbers for Tweety and Dekayla. He planned to ask them to "[t]ell [Womack] to call the courts and say that her other boyfriend beat her up and not me."
Later, Nance made a three-way call to Rachel and Rochelle. He told Rochelle to contact Jabari and Dom to tell them about his situation. Nance also told Rochelle to instruct Tweety and Dekayla to talk to Womack. Nance told Rochelle to make Womack think he loved Womack. Nance then told Rachel, "[I]t's my job to make [Womack] not come to court." He also told her, "Your job is to do the same thing."
On February 8, 2009 (count III), Nance called Rachel. They argued because Rachel had heard that Womack was pregnant. Nance got upset because no one had found Womack to discourage her from coming to court. Nance also called Dekayla. He told her to treat Womack well and encourage her not to come to court. He asked Rachel to give Dekayla Womack's contact information.
Later that day, Nance called Rachel again. Rachel told Nance that according to Dekayla, Womack had agreed not to come to court. Nance asked Rachel to make a three-way call to Dekayla to confirm this news. Dekayla told Nance, "You can't hit people you don't like." Nance replied, "I had to show her something . . . and you would have done it to[o]."
On February 9, 2009 (count IV), Nance told Dekayla, "Call the bitch [Womack] — have her write a statement that it was a big misunderstanding — she was pregnant and emotional. Write a statement and send it to the courthouse. Call her right now." Nance also told Dekayla, "I'll write [Womack] a letter and tell the bitch what to do."
The State charged Nance with four counts of felony witness tampering. On August 6, 2009, Nance pleaded guilty to all four counts. The trial judge imposed a standard range 43 months sentence on each count to run concurrently.
ANALYSIS
Nance contends that his four convictions for witness tampering under RCW 9A.72.120 violate double jeopardy principles because the underlying conduct constitutes only one, not four units of prosecution.
"No person shall . . . be subject for the same offense to be twice put in jeopardy of life and limb. . . ." U.S. Const. amend. v. "No person shall be . . . twice put in jeopardy for the same offense." Wash. Const. art. I, § 9. The double jeopardy clause protects against multiple punishments for the same offense. State v. Bobic, 140 Wn.2d 250, 260, 996 P.2d 610 (2000). Vacating convictions that violate double jeopardy is the appropriate remedy for double jeopardy violations. State v. Knight, 162 Wn.2d 806, 810, 174 P.3d 1167 (2008).
The State first argues that Nance waived the double jeopardy argument when he pleaded guilty. Our Supreme Court has held that when a defendant challenges a guilty plea, the double jeopardy violation must be clear from the record or else it is waived.Knight, 162 Wn.2d at 811. But the State argues waiver for the first time in its supplemental briefing. We therefore decline to consider it. Sorenson v. Pyeatt, 158 Wn.2d 523, 542-43, 146 P.3d 1172 (2006) (quoting Cummins v. Lewis County, 156 Wn.2d 844, 851, 133 P.3d 458 (2006)) ("[W]e adhere to the general rule that this court will not address an argument 'raised for the first time in a supplemental brief and not made originally by the petitioner or respondent within the petition for review or the response to petition.'"); RAP 13.7(b).
Our Supreme Court recently determined "the unit of prosecution for the crime of witness tampering when the defendant makes multiple phone calls to a single witness in an attempt to persuade that witness not to testify or to testify falsely in a single proceeding." State v. Hall, 168 Wn.2d 726, 728, 230 P.3d 1048 (2010). Isiah Hall briefly dated Melissa Salazar. After Salazar broke up with Hall, Hall pushed a gun to Salazar's head and announced his intent to kill her. Hall, 168 Wn.2d at 728. Hall then shoved her, entered her apartment, and chased another man out of the apartment. Hall, 168 Wn.2d at 728. Police contacted Hall's new girl friend, Aquiningoc. Aquiningoc told officers that Hall had borrowed her car and claimed he had shot at his mother's boyfriend.Hall, 168 Wn.2d at 728-29. Hall was charged with first degree burglary and second degree assault and held in jail pending trial. Hall, 168 W.2d at 729. "While in jail, Hall attempted to call Aquiningoc over 1,200 times."Hall, 168 Wn.2d at 729. Hall "attempted to persuade Aquiningoc that his legal woes were her fault and that she had a moral obligation not to testify or to testify falsely."Hall, 168 Wn.2d at 729. The State charged Hall with four counts of tampering with a witness for phone calls made on March 22, March 30, and April 4. Hall, 168 Wn.2d at 729. The jury convicted Hall on three of the witness tampering counts, and he was sentenced on those counts. Hall, 168 Wn.2d at 729.
In analyzing the witness tampering statute, theHall court applied the three-step test of State v. Varnell, 162 Wn.2d 165, 168, 170 P.3d 24 (2007).
RCW 9A.72.120 provides, "(1) A person is guilty of tampering with a witness if he or she attempts to induce a witness or person he or she has reason to believe is about to be called as a witness in any official proceeding or a person whom he or she has reason to believe may have information relevant to a criminal investigation or the abuse or neglect of a minor child to:
"(a) Testify falsely or, without right or privilege to do so, to withhold any testimony; or
"(b) Absent himself or herself from such proceedings; or
"(c) Withhold from a law enforcement agency information which he or she has relevant to a criminal investigation or the abuse or neglect of a minor child to the agency.
"(2) Tampering with a witness is a class C felony."
[T]he first step is to analyze the statute in question. Next, we review the statute's history. Finally, we perform a factual analysis as to the unit of prosecution because even where the legislature has expressed its view on the unit of prosecution, the facts in a particular case may reveal more than one "unit of prosecution" is present.
It then held, "The plain language of the statute [RCW 9A.72.120] supports the conclusion that the unit of prosecution is the ongoing attempt to persuade a witness not to testify in a proceeding." Hall, 168 Wn.2d at 734. The court reasoned that the witness tampering statute is clear in defining the unit of prosecution as the attempt to influence one witness in one proceeding. See Hall, 168 Wn.2d at 734.
To avoid Hall's explicit holding, the State relies on a passing comment in the opinion — "Our determination might be different if Hall had changed his strategy by, for example, sending letters in addition to phone calls or sending intermediaries, or if he had been stopped by the State briefly and found a way to resume his witness tampering campaign. But those facts are not before us." Hall, 168 Wn.2d at 737.
The State argues that (1) Nance used four separate intermediaries to influence Womack, (2) Nance said he would attempt to contact Womack directly, and (3) "Nance variously wanted [Womack] to lie for him, or not come to court, or to call the court and say they had the wrong guy, or to write a letter. . . ." Supp. Br. of Respondent at 6.
Based on this record and the briefs submitted, we are not inclined to make an exception to the Supreme Court's clear rule on the unit of prosecution. Accordingly, Hall controls. Because Nance sought to influence one witness — Womack — in one assault proceeding, his multiple witness tampering convictions violate the double jeopardy clause.
The parties filed their opening briefs before theHall opinion was issued. After the Hall opinion was issued, this court directed the parties to file supplemental briefs.
CONCLUSION
We reverse three of the four witness tampering convictions and remand for proceedings consistent with this opinion.
WE CONCUR.