Opinion
No. 22336-1-III.
August 16, 2011. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for Spokane County, No. 02-1-00202-2, Maryann C. Moreno, J., entered August 18, 2003.
Reversed in part and remanded with instructions by unpublished opinion per Kulik, C.J., concurred in by Sweeney and Brown, JJ.
The Washington Supreme Court granted Jason Graham's petition for review solely on the firearm enhancement issue and remanded the matter to this court for reconsideration in light of State v. Williams-Walker, 167 Wn.2d 889, 225 P.3d 913 (2010). State v. Graham, 169 Wn.2d 1005, 234 P.3d 210 (2010). The State concedes, and we agree, that the firearm enhancements are not authorized by the jury's deadly weapon special verdicts. Citing State v. Bashaw, 169 Wn.2d 133, 234 P.3d 195 (2010), Mr. Graham argues for the first time that the jury was incorrectly instructed that it had to be unanimous to answer "no" to the special verdicts. Under our decision in State v. Nunez, 160 Wn. App. 150, 248 P.3d 103 (2011) (petition for review filed March 25, 2011), we do not consider this contention raised for the first time on appeal. We remand for resentencing consistent with Williams-Walker.
In Williams-Walker, the Washington Supreme Court held that when a jury finds by special verdict that a defendant was armed with a deadly weapon, the sentencing judge is bound by that finding and may not impose a firearm enhancement rather than a deadly weapon enhancement. Williams-Walker, 167 Wn.2d at 901-02.
FACTS
In January 2002, a police officer stopped Mr. Graham in downtown Spokane for speeding. Gunfire erupted, and Mr. Graham's car sped away. Eventually the car crashed, and Mr. Graham engaged in a gun battle with several officers. He was shot and arrested. State v. Jones, noted at 136 Wn. App. 1011, 2006 WL 3479055, at *2.
The State charged Mr. Graham with six counts of attempted first degree murder, one count of first degree assault, one count of unlawful possession of a firearm, one count of first degree possession of stolen property, and one count of taking a motor vehicle without permission. The trial court instructed the jury on the procedure for deciding the special verdicts:
You will also be furnished with special verdict forms. If you find the defendant not guilty do not use the special verdict form[s]. If you find the defendant guilty, you will then use the special verdict form[s] and fill in the blank with the answer "yes" or "no" according to the decision you reach. In order to answer the special verdict form[s] "yes", you must unanimously be satisfied beyond a reasonable doubt that "yes" is the correct answer. If you have a reasonable doubt as to the question, you must answer "no".
Clerk's Papers (CP) at 86. The jury was additionally instructed on the deadly weapon special verdict:
For purposes of a special verdict the State must prove beyond a reasonable doubt that the defendant was armed with a deadly weapon at the time of the commission of the crime in Counts I, II, III, IV, V, VI and VII. A person is armed with a deadly weapon if, at the time of the commission of the crime, the weapon is easily accessible and readily available for offensive or defensive use. The State must prove beyond a reasonable doubt that there is a connection among the defendant (or an accomplice), the crime, and the deadly weapon.
A pistol, revolver, or any other firearm is a deadly weapon whether loaded or unloaded.
CP at 87.
The jury found Mr. Graham guilty of two counts of attempted first degree murder, four counts of first degree assault, one count of second degree assault, one count of unlawful possession of a firearm, one count of possession of stolen property, and one count of taking a motor vehicle without permission. The jury also found by special verdicts that Mr. Graham was armed with a deadly weapon in the commission of the attempted murder and assault offenses. Despite the jury's findings that Mr. Graham was armed with a deadly weapon, the trial court imposed seven consecutive firearm enhancements, resulting in a sentence of over 1, 225 months.
On appeal, this court affirmed Mr. Graham's convictions and sentence. Jones, 2006 WL 3479055 at *12. In particular, we concluded that although the trial court committed error by imposing a firearm sentence enhancement without an explicit firearm finding by the jury, the error was harmless because the jury was instructed that a deadly weapon was a firearm. Id. Mr. Graham filed a petition for review with the Washington Supreme Court, which granted the petition solely on the enhancement issue and remanded for this court's reconsideration. Graham, 169 Wn.2d 1005.
ANALYSIS
Firearm Enhancement — Deadly Weapon. The jury found by special verdict that Mr. Graham was armed with a deadly weapon when he committed the attempted murder and assault offenses. Six of Mr. Graham's relevant felonies were class A and one was class B. RCW 9A.32.030; RCW 9A.28.020(3)(a) (attempted first degree murder is a class A felony); RCW 9A.36.011(2) (first degree assault is a class A felony); RCW 9A.36.021(2) (second degree assault is a class B felony). For class A felonies, the deadly weapon enhancement is two years, and for class B felonies, the deadly weapon enhancement is one year. Former RCW 9.94A.510(4)(a), (b) (2000). Yet, the trial court imposed firearm enhancements of five years for the class A felonies and three years for the class B felony. Former RCW 9.94A.510(3)(a), (b). The trial court's imposition of the more severe firearm enhancement is inconsistent with Williams-Walker.
Under Williams-Walker, when a jury finds by special verdict that a defendant used a deadly weapon in committing the crime, the trial court is bound by that determination to impose a deadly weapon enhancement, even if the weapon was a firearm. Williams-Walker, 167 Wn.2d at 898. Imposition of a firearm enhancement when the jury found by special verdict that the defendant was armed with a deadly weapon is an error that can never be harmless. Id. at 902.
The State concedes that Williams-Walker controls here. We remand Mr. Graham's sentence for resentencing consistent with deadly weapon enhancements.
Jury Instruction on Unanimous "No" Special Verdict. In his supplemental brief, Mr. Graham argues for the first time that the jury was improperly instructed that it had to be unanimous to answer "no" in the special verdicts. In Bashaw, the Washington Supreme Court held that a special verdict instruction requiring unanimity to find the absence of a special finding is erroneous. Bashaw, 169 Wn.2d at 147. Bashaw also held that this instruction error is not harmless. Id.
Generally this court may refuse to review any issue that was not raised in the trial court. RAP 2.5(a). One exception is made for manifest errors affecting constitutional rights. RAP 2.5(a)(3). Mr. Graham contends the instruction error here is of constitutional magnitude. But the right to nonunanimous rejection of a sentence enhancement is neither constitutional nor manifest. Nunez, 160 Wn. App. at 162-63. As noted by this court in Nunez, there is no textual support in the Washington Constitution for nonunanimous acquittal of a special verdict. Id. at 159-60. Moreover, Bashaw recognized that it is the common law, not the constitution, that allows juries to reject sentence enhancements less than unanimously. Nunez, 160 Wn. App. at 160-62. Because Mr. Graham's allegation of instruction error is not manifest constitutional error, this court may decline to review it for the first time in this appeal.
At any rate, the issue is without merit. The special verdict instruction in this case does not require the jury to be unanimous in answering "no" to the special finding. The language of the instruction correctly requires unanimity to find the presence of the special finding, but does not require unanimity to find the absence of that finding:
In order to answer the special verdict form[s] "yes", you must unanimously be satisfied beyond a reasonable doubt that "yes" is the correct answer. If you have a reasonable doubt as to the question, you must answer "no".
CP at 86; cf. State v. Goldberg, 149 Wn.2d 888, 893, 72 P.3d 1083 (2003) (approving a nearly identical instruction).
We decline to address this issue but, in any event, it is without merit. We reverse the sentence and remand for resentencing consistent with the decision in Williams-Walker.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
Sweeney, J. and Brown, J., concur.