State v. DeSantiagoState v. DeSantiago
At issue in this case is whether the testimony of three key witnesses from the defendants’ first trial, which ended in a mistrial, could be read to the jury on retrial without violation of the sixth amendment to the United States Constitution or
In addition, the jury found that the defendants were armed with both a firearm (a gun) and a deadly weapon (a knife). The second issue here is whether one sentence enhancement for the firearm and a second sentence enhancement for the deadly weapon may be imposed for a single underlying offense. We hold that where a jury determines that a defendant was armed with more than one weapon,
FACTS
At the first trial, Eduardo Sanchez (E.Sanchez) testified that when he and Reina Serrano (Serrano) returned home on the night of February 19, 1999, a car blocked them into their driveway and three men appeared on foot from behind their house. The men put a gun to E. Sanchez‘s head and a knife to his ribs and forced him into their car. The kidnappers took him to a hotel in Kennewick, contacted his family, and demanded a ransom. After two nights they drove E. Sanchez back to Moses Lake, where his father, Jose Sanchez (J. Sanchez), delivered the ransom and E. Sanchez was released. E. Sanchez identified all five defendants: Enrique DeSantiago (E.DeSantiago), Victor Carrillo Diaz (Diaz), Pedro Mendoza Carranza (Carranza), and Elpidio Ramirez Reyes (Reyes) had abducted him, and Armando Mayorga DeSantiago (A.DeSantiago) had joined the group at the hotel.
Serrano testified about the abduction and the damage she found inside her home including cut phone lines, damage to the door, and open sodas in the kitchen. J. Sanchez testified that the kidnappers cоntacted him and Serrano after the abduction. At the direction of the police, J. Sanchez arranged an exchange of $11,000 for his son‘s safe return. Just after E. Sanchez‘s release, the defendants were arrested. Despite testimony from all three witnesses, the jury could not reach a verdict in the first trial.
Three days before the second trial, the court held an evidentiary hearing on the admissibility of the witnesses’ prior testimony. The Grant County prosecutor explained that after the court set a new trial date, he mailed subpoenas to the family. A few days later, an anonymous family member reported that the family had moved. Both a detective and a family friend revealed that the witnesses had been reluctant to testify at the first trial and moved because they were afraid of the defendants.
The prosecutor assigned a detective to try to locate the missing witnesses. The anonymous family member explained that Serrano and the Sanchezes had moved to Mexico but refused to say exactly where they were. Although they reportedly considered moving to Texas, the detective could not elicit contact information for relatives there. The local family member persistently refused to reveal the family‘s location, despite four or five attempts to obtain further information.
On cross-examination, read from the first trial, Eduardo and Jose Sanchez denied knowing anything about the pickup. Yet, at the second trial, Diaz offered for the first time a Department of Licensing record indicating that shortly before the kidnapping, the Sanchezes were the owners of a 1990 blue Chevrolet pickup truck. Diaz‘s attorney had acquired the pickup truck registration on the day before the evidentiary hearing for the second trial. However, the defense did not bring the registration to the court‘s attention until three days into trial, long after the evidentiary hearing and after the Sanchezes’ testimony had been read to the jury.
The jury found A. DeSantiago and E. DeSantiago guilty of kidnapping and thе remaining defendants guilty of both kidnapping and burglary. The jury also returned a special verdict, finding that during the kidnapping, the defendants were armed with a firearm (the handgun) and a deadly weapon (the knife). At sentencing, the court imposed both a firearm enhancement and a deadly weapon enhancement on each kidnapping conviction. Thereafter, the Court of Appeals dismissed A. DeSantiago‘s prior convictions. At his resentencing, his new lawyer argued that both enhancements could not be applied to a single underlying offense, though he conceded that the longer firearm enhancement must govern. That judge agreed and removed the shorter deadly weapon enhancement from his sentence.
All the defendants assign error to the admission of the former testimony. E. DeSantiago, Diaz, Carranza, and Reyes assign error to the imposition of both enhancements to one underlying offense. The State assigns error to the removal of A. DeSantiago‘s deadly weapon enhancement. The Court of Appeals affirmed the convictions but held for the defendants on the sentencing issue. State v. DeSantiago, 108 Wash.App. 855, 881, 33 P.3d 394 (2001).
ISSUES
(1) Was the former testimony admissible under the confrontation clause of the Sixth Amendment and
(2) Do both the firearm enhancement and the deadly weapon enhancement apply to a single offense committed with two weapons?
ANALYSIS
A. Former Testimony
The confrontation clause places two conditions on the admission of former testimony. The State must show that the declarant is “unavailable” at the time of trial and the statement must bear sufficient “‘indicia of reliability.‘” Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (quoting Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970)). Similarly,
1. Unavailability. In Roberts, a witness was deemed unavailable for trial where the prosecutor had repeatedly attempted to serve her at her last known address, she had left the state, her relatives had been unable to contact her, and her whereabouts were unknown. 448 U.S. at 75, 100 S.Ct. 2531.
Here, several attempts to find the witnesses at their last known address had failed. They were reported to be somewhere in Mexico, possibly planning to move to Texas. The State repeatedly contacted a family member who knew where the witnesses were but would not reveal their location. Any possible contacts in Texas also remained unknown. Because the witnesses were out of the country and could not be located, they were sufficiently unavailable to satisfy the confrontation clause.
The defendants argue that the State should have done more to secure the witnesses’ presence. First, they claim the prosecutor should have complied with
The defendants also argue that the State should have utilized the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings,
2. Confrontation Clause Indicia of Reliability. The Roberts court held that the reliability requirement is satisfied without more where the proffered hearsay statement “falls within a firmly rooted hearsay exception.” Roberts, 448 U.S. at 66, 100 S.Ct. 2531. The United States Supreme Court has recognized an “established rule that prior trial testimony is admissible upоn retrial if the declarant becomes unavailable....” Id. at 68, 100 S.Ct. 2531 (citing Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895); Mancusi, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293). Because all of the former testimony in this case occurred in a prior trial and the witnesses subsequently became unavailable, this rule is dispositive. Thus, we hold that, as a matter of law, there was no confrontation clause violation in this case.
The new burglary charge creates a closer question.1 The new charge arguably produced a new or stronger motive to cross-examine Serrano, which was lаcking in the first trial. Statements that the phone wires had been cut, the door had been damaged, and open sodas had been left in the kitchen were read to the jury in the second trial but Serrano was never cross-examined on these points.
It is proper to look at federal law where, as here, a Washington evidence rule is identical to the federal one. State v. Burton, 101 Wash.2d 1, 6, 676 P.2d 975 (1984), overruled on other grounds by State v. Brown, 111 Wash.2d 124, 761 P.2d 588 (1988); compare
Here, the defendants charged with burglary did not have reason to focus on Serrano‘s description of damage to the inside of the house when they faced only kidnapping charges. However, they did have some motive to discredit those statements because cut phone lines and damage to the door suggested criminal intentions, contrary to the defendants’ assertions that their interaction with E. Sanchez was friendly. Therefore, we recognize that, as a matter of law, the trial court‘s admission of Serrano‘s testimony under
B. Sentence Enhancements
The standard range sentencing grid,
If an offender is sentenced for more than one offense, “the firearm [or deadly weapon] enhancement or enhancements must be added to the total period of confinement for all offenses, regardless of which underlying offense is subject to a firearm [or deadly weapon] enhancement.”
Notwithstanding any other provision of law, all ... enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements,....
If the standard sentence range under this section exceeds the statutory maximum sentence for the оffense, the statutory maximum sentence shall be the presumptive sentence unless the offender is a persistent offender. If the addition of a [firearm or deadly weapon] enhancement increases the sentence so that it would exceed the statutory maximum for the offense, the portion of the sentence representing the enhancement may not be reduced.
See also
Finally,
The issue is whether the standard range sentence for a single charge, here kidnapping, may be enhanced once by
In State v. Spandel, Division Two of the Court of Appeals affirmed imposition of one enhancement for each weapon carried during a single offense. 107 Wash.App. 352, 356-60, 27 P.3d 613, review denied 145 Wash.2d 1013, 37 P.3d 291 (2001). Sentenced for robbery, the defendant received a firearm enhancement for the shotgun he carried and a deadly weapon enhancement for the knife his accomplice displayed. Id. at 354, 356, 27 P.3d 613. The Spandel court held that the enhancements must be served consecutive to the base sentence and to each other. Id. at 360,
In contrast, Division Three of the Court of Appeals in this case interpreted
We disagree. The plain language of
Notwithstanding any other provision of law, all firearm [or deadly weapon] enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements, for all offenses sentenced under this chapter.
Division Three noted that the legislature required enhancement when the defendant or an accomplice was armed with “‘a’ firearm” or “‘a’ deadly weapon.” DeSantiago, 108 Wash.App. at 880, 33 P.3d 394 (quoting
A majority of courts considering the meaning of “a weapon” or “a firearm” have interpreted “a” to mean that the defendant may be punished for “each” weapon involved. See, e.g., United States v. Alverson, 666 F.2d 341, 347 (9th Cir.1982); Grappin v. State, 450 So.2d 480, 482 (Fla.1984) (“[T]he phrase ‘to receive or possess a firearm’ has been held to express a legislative intent to allow separate prosecutions for each firearm.” “We find that the use of the article ‘a’ in reference to ‘a firearm’ ... clearly shows that the legislature intended to make each firearm a separate unit of prosecution.“); State v. Nichols, 865 S.W.2d 435, 437 (Mo.App.1993) (“The plain and ordinary meaning of the word ‘a’ is the singular ‘one.’ Therefore, each knife which Defendant carried concealed
This court has also recognized a distinction between “a” and “any.” State v. Westling, 145 Wash.2d 607, 610, 40 P.3d 669 (2002). In Westling, this court looked to the “plain language” of
The above analyses occurred under the framework of the “unit of prosecution doctrine,” an issue not raised by the defense in this case.5 Nevertheless, we are faced with the same essential question here аs those courts faced under the unit of prosecution framework: does the plain language of the statute indicate that the legislative body intended separate punishment, in this case in the form of a sentence enhancement, to be imposed for each weapon carried during an offense? We are convinced that, here too, the legislature intended “a firearm” to mean “each firearm.” Therefore, we decline to follow Division Three‘s reasoning in this case and, given the plain language of
Nothing in the stated purpose of the Hard Time Act contradicts this interpretation. Division Three incorrectly reasoned that the stated purpose to “‘[d]istinguish between the gun predators and criminals carrying other deadly weapons‘” indicates that the legislature intended imposition of the enhancements in the alternative. DeSantiago, 108 Wash.App. at 881, 33 P.3d 394 (quoting Laws of 1995, ch 129, § 1(2)(c)). Howеver, such a conclusion is contrary to the plain meaning of the statute. Furthermore, imposition of an enhancement for each weapon carried during an offense cannot be said to contradict this purpose because a gun-toting criminal receives a much greater enhancement for each firearm than a knife-wielding criminal receives for each knife. Compare
Finally, imposition of an enhancement for each firearm and each deadly weapon carried during an offense would not absurdly extend sentences as amicus and the defendants contend. Subsection (g) of each enhancement statute provides a presumption that the total sentence, including enhancements, cannot exceed that statutory maximum.
Therefore, the plain language of
CONCLUSION
We affirm the Court of Appeals, holding that admission of the former testimony was proper, and we affirm the convictions. However, we reverse the Court of Appeals on its interpretation of the sеntence enhancement statute. Therefore, we affirm the sentences imposed by the trial court for Diaz, Reyes, E. DeSantiago, and Carranza. However, we remand A. DeSantiago‘s case for resentencing in accordance with this holding.
IRELAND and CHAMBERS, JJ., and BRIDGE, J.P.T, and SMITH, J.P.T., concur.
MADSEN, J. (concurring/dissenting).
While I agree that the trial court did not abuse its discretion in admitting witnesses’ testimony from Mr. DeSantiago‘s first trial, I do not agree that
Analysis
Interpretation of a statute is a question of law reviewed de novo. In re Post Sentencing Review of Charles, 135 Wash.2d 239, 245, 249, 955 P.2d 798 (1998). When the language of a statute is plain, there is no room for judicial construction because legislative intent is determined solely from the language used. Bravo v. Dolsen Cos., 125 Wash.2d 745, 752, 888 P.2d 147 (1995). The court must, in that instance, give effect to that plain meaning. State v. J.M., 144 Wash.2d 472, 480, 28 P.3d 720 (2001). The same principles apply to statutes enacted through the initiative process. Charles, 135 Wash.2d at 249, 955 P.2d 798. Plain meaning is “discerned from all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question.” Dept of Ecology v. Campbell & Gwinn, L.L.C., 146 Wash.2d 1, 11, 43 P.3d 4 (2002); see Charles, 135 Wash.2d at 249, 955 P.2d 798 (the statute is read in its entirety and its provisions are interpreted in light of one another; an original act and its amendments will be considered as if passed at the same time).
Far from a “plain meaning,” what is apparent after reading
The provisions relating to deadly weapon enhancements are similarly ambiguous. Indeed, the language of
In addition to the ambiguity present in
Against these provisions that do not answer the question, the majority relies solely on the language in
Unit of prosecution cases do not tell us what the legislative intent underlying
It is only fair to conclude, after examining the relevant provisions, that
The rule of lenity applies to resolve statutory ambiguities in criminal cases in favor of the defendant, absent legislative intent to the contrary. Charles, 135 Wash.2d at 250, 955 P.2d 798. The rule applies in the event of ambiguous Sentencing Reform Act of 1981 (
Legislative history does not resolve the ambiguity. Prior to enactment of Initiative 159, there was only one enhancement provision. The initiative‘s drafters simply copied the preexisting language from former
The stated purposes of Initiative 159 also do not disclose any clear intent regarding whether multiple enhancements are intended where only a single offense is committed. In relevant part, they include: to stigmatize the carrying and use of any deadly weapons for all felonies; to reduce the number of armed offenders by making the carrying and use of a deadly weapon not worth the sentence; and to distinguish between gun predators and others carrying deadly weapons by the greater enhancements added for firearms. Laws of 1995, ch. 129, § 1. Each of these purposes is served by reading
It is arguable, though, that multiple enhancements could provide greater deterrent effect, and, to the extent the goal is harsher punishment in general, multiple enhancements added in the case of a single offense achieves a harsher punishment. On the other hand, Initiative 159 both increased penalties and expanded the range of crimes eligible for weapons enhancements, thus the stated purposes of the Hard Times for Armed Crime Act do not require that
I would conclude that the ambiguity in
Finally, the majority‘s reliance on State v. Spandel, 107 Wash.App. 352, 27 P.3d 613 (2001) is misplaced. There, the defendant argued that multiple weapons enhancements for one offense should run cоncurrently rather than consecutively. Both the defendant and the court assumed that multiple enhancements were proper in the case of a single offense. There was no analysis of the issue.
For the reasons stated, I dissent in part.
JOHNSON, J., concurs.
SANDERS, J. (dissenting).
I concur in Justice Madsen‘s opinion that it is far from plain that RCW 9.92A.510 requires multiple sentence enhancements to apply to a single underlying offense. Concurrence/dissent at 3. But I write separately to examine the trial court‘s denial of a meaningful opportunity for the defendants to cross-examine the State‘s chief witnesses when it admitted the prior testimony of Eduardo Sanchez, Reina Serrano, and Jose Sanchez.
The rules of evidence and the confrontation clause prohibit the admission of witness testimony given at a prior hearing unless “the party against whom the testimony is ... offered ... had an opportunity and similar motive to develop the testimony by direсt, cross, or redirect examination.”
At the original trial of Armando DeSantiago, Enrique DeSantiago, Victor Diaz, Pedro Carranza, and Elpidio Reyes the defendants were charged with first degree kidnapping.1 The trial resulted in a hung jury.
At the second trial the prosecution also charged Enrique DeSantiago, Diaz, Carranza, and Reyes with first degree burglary. However, the State‘s principal witnesses, the alleged kidnap victim Eduardo Sanchez, his wife Reina Serrano, and his father Jose Sanchez all fled the State prior to the second trial. So at that trial the prior testimony of these witnesses was read to the jury in their absence. That jury found Diaz, Carranza, and Reyes guilty of first degree kidnapping and burglary. Enrique DeSantiago was convicted only of first degree kidnapping, and Armando DeSantiago was convicted of first degree kidnapping and illegal possession of a firearm.
“‘The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.‘” Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974) (quoting 5 John H. Wigmore, Evidence § 1395, at 123 (3d ed.1940)). A witness‘s former testimony is admissible if the party against whom the testimony is offered previously had an opportunity and similar motive to develop testimony by direct, cross, or redirect examination.
In Wang the government initially filed a criminal complaint charging the defendant with conspiracy to harbor illegal aliens; however, it later indicted the defendant for multiple counts of harboring illegal аliens. Id. at 812. The defendant and her attorney were present at the depositions and had an opportunity to cross-examine the witnesses, but the depositions took place before the defendant had been charged with harboring aliens. Id. After a jury returned a guilty verdict for three of the four counts of harboring illegal aliens,2 the district court granted the defendant‘s motion for a new trial finding that the defendant‘s Sixth Amendment right to cross-examination had been violated by the admission of the videotaped testimony of two unavailable witnesses. Id. at 814. The district court reasoned that because the crimes of conspiracy and illegal harboring involved different elements,
the introduction of the depositions, which were taken when Wang was unaware of the ultimate charge for which she would be tried, squarely violated Wang‘s Sixth Amendment rights “to be informed of the nature and cause of the аccusation [and] to be confronted with the witness[es] against [her].”
Id. (quoting
Here the defendants were not charged with burglary until the second trial. To prove kidnapping, the State must prove abduction of a victim through the use or threatened use of deadly force.
During Ms. Serrano‘s testimony the defendants did not cross-examine her on allegations that the door to her trailer had been damaged, the phone lines were cut, pictures had fallen from the wall, and there were open soda cans in the kitchen. Report of Proceedings at 439-43. Those allegations went to establishing illegal entry and intent to commit a crime, elements of burglary. Because
The majority cites United States v. Licavoli, 725 F.2d 1040, 1048-49 (6th Cir.1984) to support the proposition that a new indictment generally does not make former testimony inadmissible. Majority at 1070. But Licavoli is inapposite. There all six defendants were previously tried for murder in state court and subsequently convicted in federal court on racketeering charges. 725 F.2d at 1044. One of the witnesses at the state trial refused to testify at the federal trial, claiming the government had breached its plea agreement with him. Id. at 1047. The court found he was unavailable for the purposes of
But here the elements of burglary and kidnapping are substantially different and the defendants had little motive to cross-examine Ms. Serrano when she testified about damage to her home. Thus, the admission of her testimony violated
Confrontation clause errors are subject to harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Id. Ms. Serrano testified about the alleged abduction of Eduardo Sanchez and damage to her home. Majority at 1067. Other than her testimony, there was no evidence supporting the charges of burglary. Additionally her testimony supported the defendants’ kidnapping convictions. Under the harmless error analysis, where tainted evidence tends to support one or more charges and convictions result, reversal is required even if some of the convictions are also supported by untainted evidence. Wang, 964 F.2d at 814. Because the erroneously admitted evidence tended to support both charges of burglary and kidnapping, I cannot conclude beyond a reasonable doubt these convictions were unaffected by the tainted evidence. Reversal of defendants’ burglary and kidnapping convictions is required.
I therefore dissent.
ALEXANDER, C.J., concurs.