State v. McKAGUE
246 P.3d 558
Wash. Ct. App.2011Background
- McKague stole a can of smoked oysters from Kee Ho Chang in Olympia and was involved in a subsequent assault on Chang in the parking lot.
- Chang sustained a concussion, scalp contusion, neck/shoulder pain, and facial injuries; CT indicated a potential occult fracture.
- Charges: first degree robbery or, in the alternative, second degree assault; McKague sought to waive a jury trial and proceed bench, which the trial court denied.
- At trial, McKague requested third degree assault as an inferior offense to second degree assault; the court initially denied, then granted third degree as an inferior offense.
- Jury convicted McKague of second degree assault and third degree theft; prior convictions led to a life sentence under the Persistent Offender Accountability Act (POAA).
- On appeal, McKague challenged the jury waiver denial, evidentiary sufficiency, jury instruction, ineffective assistance of counsel, and the POAA sentencing procedure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jury waiver denial proper | McKague contends denial was erroneous | McKague argues right to bench trial should be respected | Trial court did not abuse discretion; waiver denied properly |
| Sufficiency of evidence for substantial bodily harm | Chang sustained substantial injuries meeting RCW 9A.04.110(4)(b) | Injuries did not amount to substantial bodily harm | Evidence adequate under disfigurement/impairment bases; substantial bodily harm proved |
| Jury instruction on recklessness | Instruction created mandatory presumption relating to substantial bodily harm | Recklessness instruction did not create a mandatory presumption | Instruction did not impermissibly presuppose harm; no reversible error |
| Effective assistance for failing to request fourth-degree instruction | Counsel withdrew fourth-degree option; prejudice shown | Strategy favored third-degree instruction as inferior offense | Counsel's strategy bona fide; no ineffective assistance established |
| POAA sentencing and jury requirement for prior convictions | Judge finding prior convictions by preponderance violates Apprendi and Blakely | Almendarez-Torres exception allows judge finding prior convictions | Washington doctrine unchanged; no constitutional violation; sentencing affirmed |
Key Cases Cited
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. Supreme Court, 2000) (requires proof beyond a reasonable doubt for essential elements)
- Blakely v. Washington, 542 U.S. 296 (U.S. Supreme Court, 2004) (jury must determine facts that increase punishment beyond statutory maximum)
- Cunningham v. California, 549 U.S. 270 (U.S. Supreme Court, 2007) (limits on sentencing based on judicial fact-finding)
- Smith v. State, 150 Wash.2d 135, 75 P.3d 934 (Wash. 2003) (prior convictions and POAA sentencing procedures)
- Wheeler v. State, 145 Wash.2d 116, 34 P.3d 799 (Wash. 2001) (POAA sentencing framework and prior conviction findings)
- Thorne v. State, 129 Wash.2d 736, 921 P.2d 514 (Wash. 1996) (precedent on nonjury POAA sentencing procedures)
- Lavery v. State, 154 Wash.2d 248, 111 P.3d 837 (Wash. 2003) (APPRENDI and POAA contextual framework for sentencing)
- Roswell v. State, 165 Wash.2d 186, 196 P.3d 705 (Wash. 2008) (Apprendi application to prior convictions; jury considerations)
- Thiefault v. State, 160 Wash.2d 409, 158 P.3d 580 (Wash. 2007) (Apprendi/Blakely implications for POAA)
- Murdock v. State, 91 Wash.2d 336, 588 P.2d 1143 (Wash. 1979) (certified copies as proof in nonjury contexts)