THE STATE OF WASHINGTON, Respondent, v. TERRY LEE CLABORN, Petitioner.
No. 46994-6
Supreme Court of Washington
May 21, 1981
629
Norm Maleng, Prosecuting Attorney, and Jose E. Gaitan, J. Robin Hunt, and Alan Paja, Deputies, for respondent.
STAFFORD, J.—This case comes before us on a petition to review appellant (petitioner in this court) Terry Claborn‘s conviction for first degree assault, burglary and theft, the latter two being enhanced by special jury findings of having been committed while armed with a deadly weapon which was a firearm. We affirm the Court of Appeals.
Appellant Claborn, Robert Alford and Donny Milsap purchased a .22 caliber rifle and a shotgun on the afternoon of July 26, 1978. That evening the three drove to Iddings Farm Service. Appellant was armed with a .357 magnum pistol, Milsap had the loaded .22 rifle and Alford carried a crowbar. Milsap stood guard as Alford broke into the tool shop with the crowbar, and Alford and appellant loaded tools into an old truck owned by Iddings Farm Service. Thereafter, Milsap returned the rifle to Alford. Appellant drove the truck with Alford as a passenger and Milsap followed in their automobile.
Officer Gordon, on routine patrol, observed the truck fol
Appellant drove the truck in an evasive manner while Alford stuck his upper body out of the window and began firing at Officer Gordon with the .22 caliber rifle. Thereafter, he continued firing with appellant‘s .357 magnum. The chase ended when the truck failed to negotiate a turn and crashed into a wooded area. Appellant was arrested nearby after being tracked by dogs to his hiding place. Alford escaped and was arrested several weeks later in California.
Appellant and Alford were charged identically. Count 1 alleged first degree assault, i.e., assault with intent to kill Officer Gordon while committing a felony “to-wit: theft, upon the person or property of Jim R. Iddings . . .“; count 2 charged second degree burglary; and count 3 charged first degree theft. Counts 2 and 3 contained special allegations that appellant and Alford were armed with a deadly weapon which was a firearm.
At the close of the State‘s case appellant moved against count 1 claiming insufficient evidence to prove the necessary allied felony to establish first degree assault. The State was permitted to amend the felony charged in count 1 from theft to “possession of stolen property in the first degree“.
The jury found both appellant and Alford guilty on all three counts and also found appellant was armed with a deadly weapon and a firearm on the burglary and theft counts. Alford was found to be armed during the theft but not the burglary. The trial court imposed concurrent sentences on each.
The Court of Appeals affirmed the trial court on all three counts as to appellant and Alford. Appellant alone filed a petition for review in this court. Thus, only the issues raised by him are before us. Finding no prejudicial error, we affirm the Court of Appeals.
Appellant argues the jury instructions pertaining to the
In State v. Tongate, 93 Wn.2d 751, 613 P.2d 121 (1980), this court held that general instructions on presumptions of innocence and the State‘s burden of proving an underlying offense beyond a reasonable doubt are insufficient for a deadly weapon special verdict, under
We need not reach the asserted constitutional issue, however, and thus decline to do so. A reviewing court should not pass on constitutional matters unless absolutely necessary to the determination of the case.1 Ohnstad v. Tacoma, 64 Wn.2d 904, 907, 395 P.2d 97 (1964); accord, Bresolin v. Morris, 86 Wn.2d 241, 250, 543 P.2d 325 (1975). We hold only that even if there was instructional error, it was, under the facts of this case, harmless beyond a reasonable doubt and thus was not reversible error. See State v. Burri, 87 Wn.2d 175, 182, 550 P.2d 507 (1976); Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824, 24 A.L.R.3d 1065 (1967).
While
With these facts before us, we have no hesitancy in holding the jury could have reached no result other than that the crimes charged herein occurred while appellant was armed with a deadly weapon and a firearm. Thus, the alleged constitutional error, if any, was harmless beyond a reasonable doubt.
Even if the jury were to have believed it was Alford who possessed the .357 magnum pistol during the theft, burglary and subsequent chase, it would in this case avail appellant nothing. The trial court gave the jury “accomplice” instructions and an allied instruction that if a defendant commits a crime while armed with a deadly weapon which is a firearm, and a codefendant is legally accountable for the armed defendant‘s actions, both defendants are deemed armed with a deadly weapon which is a firearm. The jury was also informed that this is true even though a codefendant might never have had actual possession of the weapon. Appellant did not claim it was error to instruct on the subject of “accomplice” and did not challenge the allied instruction. Thus, they become the law of the case. State v. Robinson, 92 Wn.2d 357, 359, 597 P.2d 892 (1979). Under the instructions appellant‘s sentence could have been enhanced even if he had not touched a
Next, appellant contends the trial court committed error by permitting the jury to consider “possession of stolen property in the first degree” as a felony sufficient to support assault in the first degree under
Every person, who with intent to kill a human being, or to commit a felony upon the person or property of the one assaulted, or of another, shall be guilty of assault in the first degree when he:
. . .
(a) Shall assault another with a firearm . . .
(Italics ours.) He asserts the assault statute is the counterpart of our “felony-murder” statute,
Appellant‘s suggested consideration of “possession of stolen property in the first degree” would force us to view the crime in a vacuum. It would require a cavalier disregard of facts surrounding the material event, i.e., appellant‘s need to commit an assault to remain in possession of the booty and to escape. It would require us to disregard the fact that before committing the crimes involved appellant armed himself, apparently contemplating that violence
Undoubtedly a small minority of states which have established an “inherently dangerous” limitation to the “felony-murder” rule follow the position taken by appellant. The better view, however, has permitted a somewhat more unrestricted use of collateral felonies. This view requires that there be a causal connection between the collateral felony and the death and that the death be a reasonably foreseeable byproduct of the underlying felony. In determining these issues courts have looked both to the nature of the felony and to the circumstances surrounding its commission, including whether the participants appear to have contemplated that violence might be necessary.3
The foregoing is wholly logical. One may commit a felony that in and of itself involves no element of human risk, but may resort to a dangerous way of committing it or may use dangerous force to deter others from interfering. Thus, that which in a vacuum might appear relatively harmless may become dangerous in total application.
By applying the majority rule, and considering the surrounding facts, it is immediately clear there is a close causal connection between the possession of stolen goods and appellant‘s assaultive behavior in the instant case. Appellant and his codefendant appear to have concluded it was necessary to resort to violence to deter others from interfering with their possession of stolen property and to avoid apprehension. If they had not been in possession of stolen property, there would have been less danger of arrest by the police officer, and consequently that much less reason
Finally, appellant contends the trial court erred by permitting the jury to consider, by means of special verdicts, a single act of being armed with a deadly weapon/firearm for the purpose of enhancing the penalty for both the burglary and theft convictions, i.e., counts 2 and 3. He argues that the burglary and theft arose out of the same transaction and were inseparably interwoven. Thus, it is reasoned, the single act of being armed with a deadly weapon/firearm should not result in penalty enhancements for both burglary and theft. He asserts that such would be double jeopardy.
Appellant has oversimplified both the facts and the applicable law. While the state of being armed was the same in both the burglary and the theft, the acts performed to constitute the two enhanced crimes are quite different both physically and chronologically. Under the facts of this case the burglary was complete once appellant entered the building with intent to steal property therein.4 The theft occurred after the unlawful entry and took place only when appellant actually took the property. It continued until after he left the building, loaded the truck and drove away.5 In short, these were separate crimes with distinctly different elements, committed during different seg-
The double jeopardy clause protects one against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969). Here, the special verdicts did not create a multiple punishment for the same offense for the reasons set forth above and for the further reason that
BRACHTENBACH, C.J., ROSELLINI, DOLLIVER, HICKS, WILLIAMS, and DIMMICK, JJ., and JACQUES, J. Pro Tem., concur.
UTTER, J. (concurring)—I concur in the majority opinion insofar as it resolves the issues necessarily before the court for decision.