THE STATE OF WASHINGTON, Respondent, v. PRESS LEE, JR., Appellant.
No. 43956
En Banc.
December 30, 1976.
87 Wn.2d 932
Christopher T. Bayley, Prosecuting Attorney, and Edward L. Douglas, Jr., and Thomas Wolfendale, Deputies, for respondent.
HAMILTON, J.—Appellant, Press Lee, Jr., appeals the trial court judgment which declared him a habitual criminal pursuant to
In September 1973, appellant was charged and convicted of robbery. Respondent, the State of Washington, subsequently filed a supplemental information seeking an adjudication that appellant was a habitual criminal. The information also alleged five felonies,2 including the recent robbery conviction. Appellant filed a motion to dismiss the information, and the trial court denied the motion. On May 10, 1974, a jury found appellant to be a habitual criminal. Appellant appealed both the denial of the motion to dismiss and the trial court judgment which declared him a habitual criminal. The Court of Appeals certified the case to this court, and we assumed jurisdiction.
Initially, appellant claims the habitual criminal statute is an unconstitutional delegation of legislative authority.
Appellant also contends respondent violated his due process rights and bases this contention on the premise that his habitual criminal status was determined solely by the prosecution. Appellant minimizes the importance of the supplemental criminal trial, which provides him with the right to counsel, the right to subpoena witnesses, the right to discover evidence, the right to a trial by jury, and the right to cross-examine witnesses. In Anderson, supra at 174, the court stated:
Defendant also contends he was deprived of liberty without due process of law because he was not provided with an opportunity to be heard at the prosecutor‘s meeting where the decision to file a habitual criminal information is made. We disagree. A defendant suffers no “deprivation” as a consequence of the prosecutor‘s decision to allege habitual criminal status. His deprivation occurs only when and if the prosecutor proves the allegation at trial, where the defendant is afforded the full range of due process protections.
Respondent utilizes an efficient procedure to determine which individuals will be charged with habitual criminal status. State v. Nixon, 10 Wn. App. 355, 356–57, 517 P.2d 212 (1973), outlines this procedure:
Charges involving defendants whose criminal records indicate they would meet the King County prosecutor‘s criteria for habitual criminal status have been assigned to deputies whose responsibility it is to determine whether the defendants were represented by counsel at the time of their prior convictions, the amount of time between
those convictions, the nature and facts of the previous convictions, the availability of the necessary documents and the means for establishing the identity of the defendant as the person who committed the previous crimes. The deputy to whom the prosecution of the candidate for habitual criminal status has been assigned also prepares a resumé of the pending charge and determines if possible, the extent of the defendant‘s criminal activity in the area. This information is presented to a supervisors’ meeting which determines whether an habitual criminal charge will be filed. The supervisors consider whether the habitual criminal status can be established, the severity of the present offense charged, the severity of past offenses and the frequency of offenses. In addition, consideration is given to the appropriate punishment, the opportunity for and possibility of rehabilitation and the potential danger of the defendant to the community.
Also, when a particular individual is considered for a possible habitual criminal charge, his attorney is given an opportunity to submit any information to the prosecutor he considers beneficial to his client. Appellant was given this opportunity to submit additional information. Thus, both the habitual criminal trial and respondent‘s office procedure satisfied the requirements of the due process clause. Accord, State v. Lei, 59 Wn.2d 1, 4, 365 P.2d 609 (1961); State v. Jackovick, 56 Wn.2d 915, 917, 355 P.2d 976 (1960); State v. Fowler, 187 Wash. 450, 452, 60 P.2d 83 (1936); State v. Edelstein, 146 Wash. 221, 250, 262 P. 622 (1927); State ex rel. Edelstein v. Huneke, 140 Wash. 385, 392, 249 P. 784 (1926); State v. Anderson, supra at 174; State v. Nixon, supra at 357–61; State v. Matte, 1 Wn. App. 510, 513–14, 462 P.2d 985 (1969); see Graham v. West Virginia, 224 U.S. 616, 56 L. Ed. 917, 32 S. Ct. 583 (1912); Oyler v. Boles, 368 U.S. 448, 456, 7 L. Ed. 2d 446, 82 S. Ct. 501 (1962); Poe v. State, 251 Ark. 35, 470 S.W.2d 818 (1971) (collecting cases); 39 Am. Jur. 2d Habitual Criminals and Subsequent Offenders § 5 (1968).
Appellant next contends the statute deprives him of equal protection under the law. Appellant points to statistics which indicate respondent does not prosecute all eligi
In Oyler v. Boles, supra at 456, the United States Supreme Court declared a similar statute constitutional and stated:
Moreover, the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.
The Oregon Supreme Court also upheld the constitutionality of its statute in State v. Hicks, 213 Ore. 619, 325 P.2d 794 (1958). The court stated at page 637:
We do find that there has been laxity in the enforcement of the habitual criminal law but mere laxity is not and cannot be held to be a denial of the equal protection of the law. If the failure of prosecutors to enforce the criminal laws as to some persons should be converted into a defense for others charged with crime, the result would be that the trial of the district attorney for nonfeasance would become an issue in the trial of many persons charged with heinous crimes and the enforcement of law would suffer a complete breakdown.
In the present case, respondent did not select appellant on the basis of some unjustifiable standard such as race, religion, or other arbitrary classification. Respondent selected appellant because he clearly meets the requirements of
Appellant‘s sentence does not constitute cruel and unusual punishment. The life sentence contained in
Appellant assigns error to a number of evidentiary rulings by the trial judge. Appellant claims respondent did not properly authenticate a number of exhibits. Exhibits 1 and 2 are records of the Department of Social and Health Services. Each exhibit consists of: (1) an attestation by the custodian; (2) a certification of the custodian by the Secretary of State; (3) a photograph; (4) fingerprint records; (5) a copy of the judgment and sentence of King County Superior Court; and (6) a copy of the warrant of commitment. The trial court admitted exhibits 1 and 2 for the purpose of establishing the identity of appellant as the individual convicted of the two crimes.
(a) Authentication.
(1) Domestic. An official record . . . may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied by a certificate that such officer has the custody. The certificate . . . may be made by any public officer having a seal of office or official custody of the seal of the political subdivision and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his office or the seal of the political subdivision.
The director of the Department of Institutions must maintain these exhibits as part of his official records. State v. Kelly, 52 Wn.2d 676, 328 P.2d 362 (1958).
[A]dministrative processes would come to an abrupt halt if the director had no authority to delegate to a subordinate at least those custodial responsibilities which are necessary to certify the accuracy of copies of records which the department regularly maintains in the performance of its statutory responsibilities. We hold, therefore, that the director . . . does have authority to subdelegate to another the custodial responsibilities which the legislature has delegated to him, to the extent that a designated subordinate may be authorized to certify the accuracy of departmental records.
In this case, the secretary delegated his custodial responsibility to an assistant who provided the trial court with the attested copies of appellant‘s records. The Secretary of State certified the assistant as the legal custodian, and he
Appellant also claims respondent did not properly authenticate exhibits 3 through 6, which are superior court records of appellant‘s prior convictions. CR 44(c) provides:
This rule does not prevent the proof of official records or of entry or lack of entry therein by any other method authorized by law.
CR 44(c) preserves authentication by other means, including
The records and proceedings of any court of the United States, or any state or territory, shall be admissible in evidence in all cases in this state when duly authenticated by the attestation of the clerk . . . or other officer having charge of the records of such court, with the seal of such court annexed.
The clerk of the superior court is the official custodian of the records of court proceedings and may delegate his custodial authority to deputies.
Appellant also claims the trial court admitted irrelevant testimony. Evidence is relevant when it logically tends to prove a fact in issue. State v. Gersvold, 66 Wn.2d 900, 902–03, 406 P.2d 318 (1965); State v. Hults, 9 Wn. App. 297, 513 P.2d 89 (1973). The trial court allowed an officer to testify and identify appellant as the person he investigated
Appellant‘s remaining contentions concern the trial judge‘s voir dire of the jury. The trial judge asked the jurors if they had served at the time of appellant‘s robbery conviction and questioned them as to their knowledge of the prior robbery trial. Appellant maintains these questions prejudiced the jury, because the statute requires respondent to prove appellant‘s prior convictions. The record indicates the judge carefully explained to the jury that the prior convictions were allegations which respondent must prove beyond a reasonable doubt.
Appellant also contends the trial judge improperly instructed the jury during voir dire. We disagree. The judge merely followed CrR 6.4(b)7 and explained the nature of the case to the jury.
The judgment is affirmed.
STAFFORD, C.J., and HUNTER, WRIGHT, BRACHTENBACH, and HOROWITZ, JJ., concur.
ROSELLINI, J. (dissenting)—The majority by its opinion has converted the prosecutorial discretion doctrine into absolute discretion on whether a prosecutor shall prosecute a guilty person. It is my view that, under the habitual criminal statute, the prosecutor does not have any such discretion.
An exhibit in the case disclosed a total felony conviction in 1972 and 1973 of 3,500 cases. Approximately 15 percent of this total were eligible for habitual criminal status. However, approximately one-tenth of one percent were charged as habitual criminals.
A psychiatrist testifying at the trial said:
It was my opinion, with all due respect to the office of the prosecutor, that the method of selection of something like ten out of 510 potential people as candidates for
being labeled habitual criminals was arbitrary, capricious and irrational, and it didn‘t—it was not consistent with what little we do know about the accurate prediction of future criminality.
Under such circumstances, prosecutorial discretion regarding punishment under the habitual criminal statute constitutes an abuse of prosecutorial discretion and a violation of equal protection of the laws.
Does the prosecuting attorney have prosecutorial discretion where the proof of guilt is beyond any doubt and can be proven? The question answers itself. Let us suppose that a murder is committed in broad daylight, witnessed by many; that the murderer is apprehended at the scene with a smoking revolver in his hand; that the experts testify that the bullet which killed the victim came from the murderer‘s gun, and that the evidence would further prove that the murderer did not have an arguable defense.
Can anyone rationally argue that the prosecuting attorney has prosecutorial discretion to refuse to prosecute? The same situation applies under the habitual criminal statute. The State must prove its case by certified copies of previous convictions, and by fingerprints and pictures to prove that the defendant is the same person who committed previous crimes. Under such circumstances the defendant does not even have an arguable defense. Should the prosecuting attorney then have prosecutorial discretion to refuse to prosecute? Under the statute, it is mandatory and a direct charge on the prosecuting attorney to prosecute.
The prosecuting attorney does have prosecutorial discretion where the evidence of previous conviction is either difficult to prove or questionable, or the conviction has been obtained without aid of counsel at previous convictions. But where the proof is clear and uncontradicted, it is an abuse of prosecutorial discretion not to prosecute.
One of the greatest discontents with the criminal justice system is that of selective law enforcement. The citizens lose respect for the law and the criminal system because they know that violations of the law will not result in sanctions and the criminal law will affect only those who
It does great violence and gives lie to one of our greatest concepts, “equal justice under the law,” for under selective prosecution there is no equal justice and some people are more equal or unequal than others.
I believe in total law enforcement. If the laws are unjust they will be repealed; if the laws are just, the burden of obeying will fall upon everyone equally. It is argued that selective law enforcement is justified on the grounds of practicality. It is argued that it is not practical to enforce the law because we do not have the manpower or the money, or the institutions to incarcerate the guilty. We justify selective law enforcement because we don‘t like a law or a violation of the law is considered not too serious. But practicality does violence to equal protection.
To my mind, the failure of the criminal justice system and why it is held in disrespect, is brought about by selective law enforcement, which in turn destroys the citizens’ faith in equal justice under the law and the certainty of punishment for crimes.
[e]very person convicted in this state . . . of any felony, who shall previously have been [twice] convicted . . . of any crime which under the laws of this state would amount to a felony, . . . shall be adjudged to be an habitual criminal and . . . .
. . . shall be punished by imprisonment in the state penitentiary for life.
The statute thus makes clear that every person who falls into the category set forth in the statute shall be sentenced to life imprisonment. This statute is mandatory and requires that the prosecutor file the supplemental information charging every person convicted of a felony who has two previous felony convictions with a habitual criminal charge. It does not say that certain persons may be charged and others may not and gives no standards under which discretion might be exercised.
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The purpose of the Fourteenth Amendment, to secure the equality of treatment for all persons, prohibits the use of prosecutorial discretion in determining which persons, given a set of persons with two prior felonies and a current felony conviction, shall be sentenced to life imprisonment and which shall not. There is a series of cases in Washington in which prosecutorial selectivity has been held to be a violation of equal protection. In Olsen v. Delmore, 48 Wn.2d 545, 550, 295 P.2d 324 (1956), the uniform firearms act was held unconstitutional because it authorized prosecuting attorneys to charge violations of the fact as either a gross misdemeanor or a felony. The court held that the uniform firearms act was so worded that the choice of punishment could rest with the charging authorities. In holding that this violated the equal protection clause of the fourteenth amendment to the United States Constitution and article 1, section 12, of the Washington State Constitution, the court stated:
A statute which prescribes different punishments or different degrees of punishment for the same act committed under the same circumstances by persons in like situations is violative of the equal protection clause of the fourteenth amendment of the United States Constitution.
Here, it is not the statute which prescribes different pun
that in all cases where the negligent homicide statute is applicable, it supersedes the manslaughter statute. This not only accords with the rules of statutory construction, but is the interpretation necessary to satisfy the requirements of the fourteenth amendment to the Federal constitution requiring equal protection of the law for all persons.
The court discussed prosecutorial discretion regarding punishment in State v. Zornes, 78 Wn.2d 9, 24, 475 P.2d 109 (1970). The court cited with approval the following passages concerning the law of equal protection:
Generally speaking, the law with respect to the punishment to be inflicted for a crime must operate equally on every citizen or inhabitant of the state, and a statute is void as a denial of the equal protection of the laws which prescribes different punishments or different degrees of punishment for the same acts committed under the same circumstances by persons in like situation.
16A C.J.S. Constitutional Law § 564 (1956).
That no one shall be subject to any greater burdens or charges than such as are imposed upon all others under like circumstances, means that such protection shall be extended to every person and everywhere without reference to his position in society, or station in life; whether he lives in town or the country, or whatever color may be the house in which he lives, or whether humble or imposing in structure.
The existence of two prior convictions are “like circum
In State v. Williams, 9 Wn. App. 622, 625, 513 P.2d 854 (1973), the Court of Appeals stated:
Every person convicted in this state . . . of any felony, who shall previously have been twice convicted, . . . of . . . a felony, . . . shall be punished by imprisonment in the state penitentiary for life [
RCW 9.92.090 ].. . . and accordingly, no guidelines are needed. The prosecuting attorney‘s decision must be based upon his ability to meet the proof required by the statute. State v. Canady, 69 Wn.2d 886, 421 P.2d 347 (1966).
(Italics mine.)
The testimony by members of the prosecuting attorney‘s office made it unmistakably clear that with regard to habitual criminal proceedings, its decision is not based upon its ability to meet the proof required by the statute, rather this decision is based on a number of unrelated factors. This testimony also made it clear that the office does intentionally discriminate in its enforcement of the statute. The testimony demonstrated that there was a direct violation of the holding in Williams in the instant case.
I do not agree with State v. Nixon, 10 Wn. App. 355, 517 P.2d 212 (1973), and State v. Anderson, 12 Wn. App. 171, 528 P.2d 1003 (1974), where the appellate court ruled that selective enforcement of the statute by the prosecuting attorney was not unlawful. Mysteriously, the opinions made no reference to the Williams case. Assuming arguendo that Williams is superseded by Nixon, and that some selectivity may be exercised by the prosecutor, Nixon makes it clear that such selectivity may not be exercised in the absence of rational justifiable standards, and that arbitrary selectivity and the use of unjustifiable standards will render such a process constitutionally void for lack of equal protection of the laws. As stated in Oyler v. Boles, 368 U.S. 448, 7 L. Ed.
The fact that the prosecutor may exercise this selectivity with apparently beneficent motives does not alter the fact that if it is done arbitrarily and without justifiable standards it is constitutionally defective. We should be mindful of the admonition given by the United States Supreme Court in Baggett v. Bullitt, 377 U.S. 360, 373, 12 L. Ed. 2d 377, 84 S. Ct. 1316 (1964): “Well-intentioned prosecutors and judicial safeguards do not neutralize the vice of a vague law.” In the more recent case of Papachristou v. Jacksonville, 405 U.S. 156, 31 L. Ed. 2d 110, 92 S. Ct. 839 (1972), the court noted that where there are no standards governing the exercise of discretion granted by a statute, the scheme permits and encourages arbitrary enforcement of the law.
Is the selective process used by the prosecuting attorney‘s office arbitrary and based upon unjustifiable standards? The evidence in this case shows that the prosecutor‘s office makes its initial selection of whom to consider out of those “eligible” in a completely arbitrary, hit-and-miss manner, totally without standards of any kind. The office is not even aware of which individuals coming through the system have current third felonies and it is only by chance or by virtue of a detective‘s or deputy‘s subjective judgment that such a person comes to its attention. Further, once someone has come to the attention of the prosecutor‘s office, its decision as to whether to file a charge is based on very limited objective facts, including past offenses, current offense, whether the individual has served time in an institution, whether the sentencing judge will commit him to the penitentiary for the third felony, and a few other facts. There is no psychiatric study, the parole or probation officer who often has intimate knowledge of the individual is rarely if ever consulted for his
The prosecutor‘s office then has the best of both worlds—rather than charge all those convicted of three felonies or more and then have a trial related to proof of the convictions, they get to pick and choose and then have their court proceedings and claim the defendant is afforded the same due process as anyone else facing a “criminal” trial.
Until the record discloses some rational basis for selective prosecutions and shows a majority of the habitual criminals are proceeded against, I would reverse on the ground of violation of equal protection of the laws.
UTTER, J., concurs with ROSELLINI, J.
Petition for rehearing denied February 4, 1977.