Opinion
No. 28093-4-III
10-13-2011
STATE OF WASHINGTON, Respondent, v. DWIGHT L. RUSS, Appellant.
UNPUBLISHED OPINION
Siddoway, J. — Dwight Ladon Russ, who was previously convicted in 1998 and 2000 for two "most serious" violent offenses, was found guilty in the trial below of first degree burglary and second degree assault, leading to a sentence of life without the possibility of parole under the Persistent Offender Accountability Act, RCW 9.94A.570. He appeals the convictions on grounds that (1) the trial court erroneously refused to instruct the jury on lesser degree offenses and (2) the court's imposition of the sentence mandated by the persistent offender act without a jury determination as to his prior convictions deprived him of his federal constitutional rights to a jury trial, due process, and equal protection. U.S. Const. amends. VI, XIV. We find no error or constitutional violation and affirm.
FACTS AND PROCEDURAL BACKGROUND
On a late evening in December 2007, Natalie Benda and several friends were at the home of Bill and Melody Goode, celebrating Ms. Benda's birthday. Those present had begun drinking about 6 p.m. at a bar where Ms. Benda worked, after which they traveled to the Goode home and continued drinking. By the early hours of the following morning, when the events leading to this criminal case occurred, most admitted being intoxicated. Their recollections of the evening's events vary considerably.
Among facts generally agreed by guests who testified at trial to having some recall are that Mr. Russ, Ms. Benda's boyfriend, arrived at around 3 a.m. to pick her up, having been driven to the home by his friend Antoine Marshall. Before leaving the home, Mr. Russ became involved in an altercation with Steve Rijon or his uncle, Earl Davis. Ms. Goode and Ms. Benda physically intervened and Mr. Russ was pushed out of the home and told by the Goodes to leave. After Mr. Russ left, Ms. Goode drove Ms. Benda home.
Also generally agreed is that sometime later, Mr. Russ returned to the home with Mr. Marshall and a second altercation ensued with Mr. Davis and Mr. Rijon. Mr. Goode called 911 and Mr. Russ and Mr. Marshall left. They were arrested by Washington State Patrol Trooper Rob Spencer in or near Mr. Marshall's car outside the Goode home. A gun was found in the car.
The witnesses' testimony as to the events of the evening was otherwise markedly different.
Mr. Goode testified that after the first altercation and a short time after his wife left to take Ms. Benda home, as he stood in the kitchen talking to Mr. Rijon, Mr. Russ entered the home with a gun tucked in his trousers. Mr. Rijon asked Mr. Russ, "'What are you gonna shoot me?'" Report of Proceedings (RP) (Apr. 7, 2009) at 81. Mr. Russ pointed the gun at Mr. Rijon, who walked over, pulled the gun to his forehead and said, "'Shoot me, mother fucker. What are you gonna do, spend the rest of your life in prison?'" Id. As this was happening, Mr. Goode saw Mr. Marshall standing in the doorway. Mr. Goode went downstairs to call 911. When he returned to the living room, Mr. Russ and Mr. Marshall were gone.
Mr. Davis's testimony was that on Mr. Russ's return to the house, there was a crowd of individuals in the area of the front door. Mr. Russ "stuck the gun at [Mr. Rijon's] chest," and they "pretty much argued." Id. at 126. At that point, Mr. Davis saw a frying pan, with which he tried to hit Mr. Russ. (On this score, Mr. Davis's account varied from that of Mr. Goode, who testified that Mr. Davis chased Mr. Russ with a frying pan during the first altercation, not the second.) After "a little bit of a tussle," Mr. Russ and Mr. Marshall, who was with him, left. Id. On cross-examination, Mr. Davis admitted that his recollection of the activities was hazy because he had been "blitzed." Id. at 132.
Mr. Marshall testified that he drove Mr. Russ to the Goode home to pick up Ms. Benda. After waiting in the car for a time, he went to the door and was let in, but upon turning around after entering was confronted by a short man with scraggly hair who held a butcher knife at his neck. Mr. Marshall asked what was going on and where his friend was, but the man mumbled something he did not understand at which point Mr. Marshall backed out of the door and left to get a gun. He went to a home where Ms. Benda's car was parked, retrieved a gun he had seen in her car, and returned to the house. When someone opened the door, Mr. Marshall saw Mr. Russ, who Mr. Marshall testified was not armed. Mr. Marshall said, "[C]ome on, let's go," and the two returned to Mr. Marshall's car, where Mr. Marshall put the gun under the driver's seat. RP (Apr. 8, 2009) at 220. At that point, patrol officers arrived and arrested both men. Mr. Marshall testified that Mr. Russ had no involvement in procuring the gun, that Mr. Marshall was "acting on [his] own in relation to [the] gun," and that Mr. Marshall pleaded guilty to the charges filed against him for the events of the evening. Id. at 222.
Ms. Goode and Ms. Benda were absent at the time of the second incident. Mr. Rijon testified that he had no recollection of any of the events of the evening. Mr. Russ did not testify.
Jayson Baker, a neighbor who had been on the street intermittently that early morning preparing to leave for work plowing snow, testified to having heard two altercations at the home and having seen two black men leave the home following each. Mr. Russ and Mr. Marshall are black. He testified that following the second altercation, he saw the taller man hand a pistol or revolver to the shorter man after leaving the Goode home. Counsel drew the jurors' attention to the height of the two men at the time Mr. Marshall testified, and a Spokane police detective assigned to the case testified that Mr. Marshall is approximately 5 feet 10 inches tall, and Mr. Russ is considerably taller.
Trooper Spencer testified that he drove to the Goode residence in response to a "person with a weapon call" at 4:26 a.m. on the morning in question. RP (Apr. 6, 2009) at 25. Upon approaching Mr. Marshall's car, he saw a handgun underneath the driver's seat, which another officer retrieved from the car. He and other officers took Mr. Marshall and Mr. Russ into custody.
Among instructions given the jury was an instruction that to convict Mr. Russ for the charge of first degree burglary, the State must prove the following elements, among others:
(1) That on or about the 23rd day of December, 2007, the defendant entered or remained unlawfully in a building;Clerk's Papers (CP) at 167 (Instruction 9).
(2) That the entering or remaining was with intent to commit a crime against a person or property therein; [and]
(3) That in so entering or while in the building or in immediate flight from the building the defendant or an accomplice in the crime charged was armed with a deadly weapon.
The jury was instructed that to convict Mr. Russ of the crime of assault in the second degree, the State must prove, among other elements, that "on or about the 23rd day of December, 2007, the defendant assaulted Steven Rijon with a deadly weapon." Id. at 172 (Instruction 14).
Finally, the jury was instructed that a person could be guilty of a crime "if it is committed by the conduct of another person for which he or she is legally accountable" and that "[a] person is legally accountable for the conduct of another person when he or she is an accomplice of such person in the commission of the crime." Id. at 174 (Instruction 16). It was instructed that a person is an accomplice in the commission of a crime,
if, with knowledge that it will promote or facilitate the commission of the crime, he or she either:
(1) solicits, commands, encourages, or requests another person to commit the crime; or
(2) aids or agrees to aid another person in planning or committing the crime.
Id.
Mr. Russ asked that the court also instruct the jury on lesser degree offenses of residential burglary and simple assault. Residential burglary is a class B felony. RCW 9A.52.025(2). Fourth degree assault is a gross misdemeanor. RCW 9A.36.041(2). Conviction of the lesser crimes—neither a "most serious" offense—would have avoided imposition of the life sentence under the persistent offender act. Defense counsel argued that the jury could find these lesser degree crimes if it concluded that Mr. Russ was unarmed, entered, or remained in the residence unlawfully with the intent to assault someone and did assault Mr. Rijon, but had no involvement in Mr. Marshall's decision to arm himself with a gun and was therefore not an accessory to the actions of Mr. Marshall. The court was not persuaded that there was a factual basis for instructing on the lesser degree crimes, however, and refused to do so.
In closing argument, Mr. Russ's counsel cited accomplice liability as "the meat of the case," and reminded the jury that Mr. Marshall testified clearly that he, not Mr. Russ, had the gun, and that he had pleaded guilty, accepting responsibility. RP (Apr. 8, 2009) at 296. Defense counsel suggested that Mr. Marshall returned to the home only to "get [Mr. Russ] out of there" and argued, "Is there any connection or nexus between the two in the commission of any crime? There's no evidence of that. None whatsoever." Id. at 298.
The jury nonetheless found Mr. Russ guilty of both counts and, by special verdict, made findings supporting two firearm enhancements. At the sentencing hearing, the court was presented with an understanding of defendant's criminal history signed by Mr. Russ and certified copies of judgments and sentences, all establishing that Mr. Russ had been convicted for robbery in the second degree in 1998 and for arson in the second degree and assault in the second degree (deadly weapon) in 2000. The robbery and assault convictions fall within the definition of a "most serious" offense, requiring that Mr. Russ be sentenced as a persistent offender to life without the possibility of parole. Former RCW 9.94A.030(29)(b) (2006) (assault in the second degree); former RCW 9.94A.030(29)(o) (2006) (robbery in the second degree); RCW 9.94A.570. Mr. Russ appeals.
ANALYSIS
I
Mr. Russ argues that the trial court erred in failing to give his requested instructions on the lesser degree offenses of residential burglary and simple assault.
Washington statutes provide that a defendant charged with an offense has an "'unqualified right'" to have the jury pass on a lesser included offense if there is "'even the slightest evidence'" that he may have committed only that offense. State v. Parker, 102 Wn.2d 161, 163-64, 683 P.2d 189 (1984) (quoting State v. Young, 22 Wash. 273, 276-77, 60 P. 650 (1900)). A two-prong test is applied to determine when a lesser-included-offense instruction must be given: First, each element of the lesser included offense must be a necessary element of the offense charged (the legal prong) and second, the evidence in the case must support an inference that the lesser included crime was committed (the factual prong). State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978).
A defendant has the same right to instruction on a lesser degree offense, when charged with an offense consisting of different degrees. The test is slightly different, but only with respect to the legal prong. A trial court properly instructs a jury on a lesser degree offense when "'(1) the statutes for both the charged offense and the proposed inferior degree offense proscribe one offense; (2) the information charges an offense that is divided into degrees, and the proposed offense is an inferior degree of the charged offense; and (3) there is evidence that the defendant committed only the inferior offense.'" State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000) (internal quotation marks omitted) (quoting State v. Peterson, 133 Wn.2d 885, 891, 948 P.2d 381 (1997)); Workman, 90 Wn.2d at 447-48.
Residential burglary is committed when a defendant "with intent to commit a crime against a person or property therein . . . enters or remains unlawfully in a dwelling other than a vehicle." RCW 9A.52.025(1). First degree burglary requires the same intent, more broadly encompasses entry into any building, and requires that "in entering or while in the building or in immediate flight therefrom, the actor or another participant in the crime (a) is armed with a deadly weapon, or (b) assaults any person." RCW 9A.52.020. Simple assault is essentially identical to fourth degree assault under our criminal code, and constitutes assault of another "under circumstances not amounting to assault in the first, second, or third degree, or custodial assault." RCW 9A.36.041. The State does not dispute that the legal prong is satisfied.
To satisfy the factual prong, some evidence must be presented that affirmatively establishes the defendant's theory on the lesser included offense. State v. Fowler, 114 Wn.2d 59, 67, 785 P.2d 808 (1990) (citing State v. Rodriguez, 48 Wn. App. 815, 820, 740 P.2d 904, review denied, 109 Wn.2d 1016 (1987)), overruled on other grounds by State v. Blair, 117 Wn.2d 479, 816 P.2d 718 (1991). When determining whether the evidence at trial supported the giving of an instruction, we view the supporting evidence in the light most favorable to the party that requested the instruction. Fernandez-Medina, 141 Wn.2d at 455-56.
Mr. Russ argues that through Mr. Marshall's testimony he presented evidence that, if believed by the jury, established that Mr. Russ was not armed and did not stand in an accomplice relation to Mr. Marshall, who was armed. We agree.
But that alone does not satisfy the factual prong in this case. The question remains, is there evidence to support Mr. Russ's being guilty of only residential burglary and/or simple assault? We find none. Mr. Russ did not testify. Ms. Benda and Ms. Goode were gone by the time of the second incident. Mr. Rijon remembers nothing. Mr. Marshall testified that upon trying to enter the home, he was briefly held at knifepoint and left, so he offered no testimony to support an unarmed crime by Mr. Russ. The only other evidence presented to the jury of Mr. Russ's conduct was that of Mr. Goode and Mr. Davis, both of whom testified that when Mr. Russ returned to the home he was armed with a handgun and pointed it at Mr. Rijon. If the evidence supported a burglary or assault at all, it supported first degree burglary and second degree assault.
Mr. Russ nonetheless argues that given the evidence that both Mr. Goode and Mr. Davis had consumed substantial amounts of alcohol during the eight hours preceding the alleged offenses and in light of their inconsistent and conflicting accounts, the jury was entitled to pick and choose what evidence it wished to believe or from which it drew reasonable inferences. But it is not enough that the jury might disbelieve the evidence pointing to guilt. Fernandez-Medina, 141 Wn.2d at 456. As observed in Rodriguez, "The jury may always disbelieve any portion of a witness's testimony; 'but if the defendant would urge as an alternative theory that he committed only [the included crime], some evidence must be presented affirmatively to establish that theory.'" 48 Wn. App. at 820 (alteration in original) (quoting State v. Wheeler, 22 Wn. App. 792, 797, 593 P.2d 550 (1979)). To give a lesser included instruction absent such evidence "would [be] to encourage the jury speculation that the factual prong is intended to prevent." Id.
Finally, Mr. Russ argues on appeal that the jury might have found that he committed an unarmed assault or residential burglary during the first incident at the Goode home, inasmuch as Mr. Goode testified that there was pushing and shoving going on at that time and Mr. Russ initially resisted the effort to get him to leave. To address this argument, we look briefly at prior history of Mr. Russ's prosecution that bears on the focus of the State's charges in the trial below.
Mr. Russ was tried twice for his actions at the Goode home in December 2007; the first trial resulted in a hung jury and mistrial. At the first trial, the State prosecuted Mr. Russ on six counts, all "most serious" offenses, three of which (one count of first degree burglary and two of second degree assault) were based on Mr. Russ's actions during the first incident. The State alleged that, as an actor or accomplice, Mr. Russ assaulted Mr. and Ms. Goode and that in temporarily resisting their efforts to get him to leave had remained unlawfully.
At the first trial, the trial court agreed that the State did not present sufficient evidence to take the counts charging second degree assault against Mr. and Ms. Goode to the jury, and dismissed them at the conclusion of the State's case. She also dismissed the State's fifth count, charging Mr. Russ with second degree assault against Mr. Goode during the second incident. Finally, she dismissed the count charging Mr. Russ with first degree burglary for the first incident because of the absence of proof of an intent to assault, although she noted that the State could request that she instruct on the lesser included charge of residential burglary. The State then requested a residential burglary instruction and the court gave it.
After the mistrial and prior to commencement of the second trial, the State moved to voluntarily dismiss the residential burglary charge. It was therefore clear, and confirmed on the record prior to opening statements in the second trial, that the State was proceeding only on charges based on Mr. Russ's conduct during the second incident. RP (Apr. 6, 2009) at 1. In the prosecutor's opening statement and closing argument he clearly identified the second incident as constituting the criminal conduct charged. Id. at 36; RP (Apr. 8, 2009) at 285-89 (e.g., "Mr. Russ came over to see Ms. Benda on her birthday. He was invited into the house, that's not contested"). Evidence of conduct that was not contended to be a basis for the charges against Mr. Russ did not warrant giving an instruction on lesser degree crimes.
The trial court did not err in declining to give the requested instructions.
II
Mr. Russ's remaining arguments on appeal challenge the persistent offender act on constitutional grounds.
Mr. Russ argues, first, that when the trial court applied the persistent offender act to increase his sentence to life without the possibility of parole based on its finding of prior convictions by a preponderance of the evidence, it deprived him of his rights under the Sixth Amendment and the due process clause of the Fourteenth Amendment of the United States Constitution. The constitutional rights to due process and a jury trial "indisputably entitle a criminal defendant to 'a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.'" Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) (quoting United States v. Gaudin, 515 U.S. 506, 510, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995)). This principle is applied not just to essential elements of the charged offense but also to facts labeled "sentencing factors" if the facts increase the maximum penalty faced by the defendant. Id. at 494.
However, the United States Supreme Court has previously held that the Sixth and Fourteenth Amendment protections do not apply to determining the existence of prior convictions. See Almendarez-Torres v. United States, 523 U.S. 224, 239, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998). Apprendi recognizes this as a continuing exception, holding that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490 (emphasis added). Our own Supreme Court continues to recognize the "prior conviction" exception of Almendarez-Torres as well. See State v. Thiefault, 160 Wn.2d 409, 418, 158 P.3d 580 (2007).
The Apprendi decision allowed for the possibility that Almendarez-Torres was incorrectly decided, see 530 U.S. at 489, and Mr. Russ argues from this that we should examine its continued validity ourselves. It is not our place to do so. Under controlling authority of the United States Supreme Court and our own Supreme Court, the trial court's imposition of the sentence mandated by the persistent offender act did not violate the holding of Apprendi.
Mr. Russ next argues that his equal protection rights under the Fourteenth Amendment have been violated by an irrational statutory distinction between the procedural rights of the class of recidivists to which he belongs—recidivist subject to the persistent offender act—and others.
He points to State v. Roswell, 165 Wn.2d 186, 192, 196 P.3d 705 (2008), which held that a defendant's prior conviction of certain sexually motivated crimes, which operate to elevate the crime of communication with a minor for immoral purposes from a misdemeanor to a felony, is an element that must be proved to a jury beyond a reasonable doubt. RCW 9.68A.090(2). He contrasts this with the persistent offender act, under which the State bears the burden of proving the existence of prior convictions by a preponderance of the evidence to the court, at the sentencing hearing. State v. Lopez, 147 Wn.2d 515, 519, 55 P.3d 609 (2002); RCW 9.94A.500(1). He argues that no rational basis exists for distinguishing the jury trial right and burden of proof of one class of recidivists from the other.
This court previously addressed the same argument in State v. Williams, 156 Wn. App. 482, 234 P.3d 1174, review denied, 170 Wn.2d 1011 (2010). We observed in that case that because a liberty interest was involved, a defendant challenging the legislature's differing treatment of the two classes of defendants must show that the differing treatment rests on "'grounds wholly irrelevant to the achievement of legitimate state objectives,'" id. at 497 (quoting State v. Thorne, 129 Wn.2d 736, 771, 921 P.2d 514 (1996)); in short, that the law is purely arbitrary. Id. We found that the purpose of the persistent offender act to protect public safety by punishing recidivists subject to the persistent offender act more severely than other offenders was not irrelevant to the purpose of the act. Id. at 498. Division One of our court has rejected an equal protection challenge to the procedure for proving prior convictions under the persistent offender act for like reasons. State v. Langstead, 155 Wn. App. 448, 456-57, 228 P.3d 799 (recidivists whose conduct is inherently culpable enough to incur a felony sanction are, as a group, rationally distinguishable from persons whose conduct is felonious only if preceded by a prior conviction for the same or similar offense), review denied, 170 Wn.2d 1009 (2010). Mr. Russ has not demonstrated an unconstitutional distinction.
STATEMENT OF ADDITIONAL GROUNDS
Mr. Russ filed a statement of additional grounds for relief raising the following issues:
Juror Unanimity. Mr. Russ argues that because the State charged him as an actor and/or an accomplice, but then argued that Mr. Russ was the principal and not an accomplice, the State violated his right to a unanimous jury verdict by failing to indicate to the jury which role to consider in its deliberations. He relies for support on State v. Coleman, 159 Wn.2d 509, 511, 150 P.3d 1126 (2007), which found reversible error where the trial court failed to give a Petrich instruction in a multiple acts case in which the State had not elected a single act on which to rely.
Well-settled authority establishes that it is not necessary that jurors be unanimous as to the manner of an accomplice's and principal's participation as long as all agree that they did participate in the crime. State v. Hoffman, 116 Wn.2d 51, 104, 804 P.2d 577 (1991) (citing State v. Carothers, 84 Wn.2d 256, 525 P.2d 731 (1974)); State v. Teal, 152 Wn.2d 333, 339, 96 P.3d 974 (2004). Accomplice liability represents a legislative decision that one who participates in a crime is guilty as a principal, regardless of the degree of the participation. Hoffman, 116 Wn.2d at 104. The jury was properly instructed. See CP at 166, 167, 174, 175 (Instructions 8, 9, 16, 17).
Failure to Rearraign (Due Process). On January 16, 2008, Mr. Russ was charged with first degree burglary and two counts of second degree assault. On May 12, 2008, the information was amended to include an additional first degree burglary and two second degree assault charges. Mr. Russ argues that failure to rearraign him after the information was amended is a due process violation.
An information may be amended without rearraignment if substantial rights of the defendant are not prejudiced or the amendment is merely formal. State v. Allyn, 40 Wn. App. 27, 35, 696 P.2d 45, review denied, 103 Wn.2d 1039 (1985). The defendant bears the burden of demonstrating prejudice. State v. Brisebois, 39 Wn. App. 156, 162, 692 P.2d 842 (1984), review denied, 103 Wn.2d 1023 (1985). In evaluating prejudice, the court must determine if the defendant was misled or surprised. Id. at 163. Mr. Russ has not articulated any prejudice.
Moreover, where a defendant proceeds to trial without objection and without asking for continuance and has a full trial on the merits, he is deemed to have waived his right to a formal arraignment. State v. Anderson, 12 Wn. App. 171, 173, 528 P.2d 1003 (1974). Here, Mr. Russ had two full trials on the merits, the first resulting in dismissal of a number of counts at the close of the State's case and ultimately a hung jury. Both trials were conducted as if a plea of not guilty had been entered on the additional counts. Mr. Russ proceeded to trial in each case without objection. Through his conduct, he effectively waived his right to a formal arraignment.
Failure to Rearraign (Lack of Subject Matter Jurisdiction). Finally, Mr. Russ argues that the superior court only acquires jurisdiction over a criminal action once an information is filed and the defendant is properly arraigned.
"CrR 2.1 provides that a criminal proceeding is commenced when the State files an initial pleading either by indictment or information. 'From the time an action is commenced, the superior court acquires jurisdiction.'" State v. Barnes, 146 Wn.2d 74, 81, 43 P.3d 490 (2002) (footnote omitted) (quoting State v. Sponburgh, 84 Wn.2d 203, 206, 525 P.2d 238 (1974)). Mr. Russ was charged by information on January 16, 2008 and arraigned in accordance with CrR 4.1 on January 29, 2008. The court thereby acquired subject matter jurisdiction.
Mr. Russ's statement of additional grounds for relief is without merit.
We affirm the judgment and sentence.
A majority of the panel has determined that 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.
Siddoway, J.
WE CONCUR:
Kulik, C.J.
Brown, J.
State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984).