State v. McGeeState v. McGee
Lead Opinion
Dеfendant McGee appeals the 24-month sentence enhancement imposed by the trial court pursuant to
An additional twenty-four months shall be added to the presumptive sentence for any ranked offense involving a violation of chapter 69.50 RCW if the offense was also a violation ofRCW 69.50.435.
At the time of the offense here at issue,
Any person who violatesRCW 69.50.401(a) by manufacturing, selling, delivering, or possessing with the intent to manufacture, sell, or deliver a controlled substance listed under that subsection to a person in a school... or within one thousand feet of the perimeter of the school grounds is punishable by a fine of up to twice the fine otherwise authorized... or by imprisonment of up to twice the imprisonment otherwise authorized ... or by both such fine and imprisonment.
Both the trial court and the Court of Appeals ruled
In May 1990, police arrested McGee in a parking lot adjacent to the China Express Restaurant in Seattle. Just prior to the arrest, police observed three separate transactions in which McGee exchanged white objects for cash. During a search incident to the arrest, police discovered in McGee's possession a pill bottle containing 7.7 grams of rock cocaine and $91 in currency.
At trial, McGee testified he had purchased the cocaine 2 days before his arrest, using money he and three friends had pooled together. McGee denied selling any of the cocaine to other people, insisting he merely intended to give his friends their shares (presumably at a location outside the school zone). The jury found McGee guilty of possession with intent to deliver a controlled substance in violatiоn of
The trial court assigned McGee an offender score of 1, and calculated the presumptive range, including the schoolyard
McGee appealed his conviction, raising evidentiary issues and an ineffective assistance of counsel claim, and challenging the trial court's interpretation of
McGee contends the wording of
Any person who violatesRCW 69.50.401(a) by. . . possessing with the intent to . . . deliver a controlled substance ... to a person . . . within one thousand feet of the perimeter of the school grounds is punishable [by twice the otherwise authorized fine or imprisonment or both],
(Italics ours.) McGee argues the phrase "within one thousand feet" modifies either the verb "deliver" or the term, "to a person". McGee bases this contention on the last antecedent rule, which states:
Where no contrary intention appears in a statute, relative and qualifying words and phrases . . . refer to the last antecedent.
Boeing Co. v. Department of Licensing,
The State, on the other hand, asserts the phrase "within one thousand feet" modifies the two initial words of the statute: "Any person". The State contends
With respect to the analogous federal statute,
Any person who violates section 841(a)(1) or section 856 of this title by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a . . . school
(see
McGee contends, because
We disagree. A statute is ambiguous if it is subject to two or more reasonable interpretations. See State v. Garrison, 46 Wn, App. 52, 54,
We find McGee's alternative interpretations unreasonable. McGee's contеntion the phrase "within one thousand feet" modifies the infinitive verb "to deliver" lacks merit because it ignores the other verbs in the sentence, i.e., manufacturing, selling, and delivering, thereby rendering the entire provision meaningless. As one commentator explains:
The [last antecedent] rule is another aid to discovery of intent or meaning and is not inflexible and uniformly binding. Where the sense of the entire act requires that a qualifying word or phrase apply to several preceding or even succeeding sections,*789 the word or phrase will not be restricted to its immediate antecedent.
(Footnote omitted.) 2A N. Singer, Statutory Construction § 47.33, at 270 (5th ed. 1992).
McGee's argument the phrase "within one thousand feet" modifies the phrase "to a person" is likewise flawed. McGee relies on State v. Wimbs,
[A]s the State points out,RCW 69.50.435 is susceptible to more than one interpretation because to require proof of "manufacture to a person" would be absurd. . . . The phrase "to a person" is meaningful and not superfluous only if it is included in the phrase "possessing with intent to . . . deliver ... to a pеrson". Consistent with the last antecedent rule, . . . the phrase "possessing with intent to . . . deliver... to a person" is qualified by the phrase "within one thousand feet of the perimeter of the school grounds". The latter phrase also refers to manufacturing or selling or delivering.
(Citations omitted.) Wimbs,
McGee also argues
We conclude our interpretation of
Affirmed.
Andersen, C.J., and Brachtenbach, Durham, and Guy, JJ., concur.
Concurrence Opinion
(conсurring) — I concur entirely with the majority, but write separately to disagree with the dissent on two points.
First, the dissent would hold that because the statute in question has been interpreted one way by one division of the Court of Appeals and another way by another division, and
The dissent's notion of this court's function is wrong and contrary to our cases. Interestingly, the dissent cites no authority for its erroneous statement of law.
This court has the ultimate duty and authority to determine whether a statute is ambiguous.
On matters of statutory interpretation, the ultimate authority to determine the meaning and purpose of the statute is vested in this court. Because the interpretation of a statute is a question of law, our review is de novo. Accordingly, we interpret [the statute] independently of the trial court's interpretation.
(Citations omitted. Italics mine.) Multicare Med. Ctr. v. Department of Social & Health Servs.,
The dissent's proposed rule would abdicate this court's authority and responsibility. The reason for outright rejection of the dissent's unsupported rule was well stated by Justicе Marshall: "Nor have we deemed a division of judicial authority automatically sufficient to trigger lenity. If that were sufficient, one court's unduly narrow reading of a criminal statute would become binding on all other courts, including this one." (Citation omitted.) Moskal v. United States,
Thus, the dissent's proposal that a division in the lower courts is automatically determinative of ambiguity and therefore binding on this court is patently wrong. It is not supported by any authority. It is contrary to all the holdings of this court; those holdings are consistent with our constitutional authority and duty. No principled reasoning supports the dissent's proposal. The reasons advanced in Moskal demonstrate why the dissent's theory is wildly illogical.
Before delving into the rule of lenity, I must point out a statement quoted by the dissent which is an unfounded theory. The dissent quotes from a student note as follows: "separation of powers cannot be preserved unless judges are prevented from construing stаtutory mandates liberally." Dissent, at 800. Neither the dissent nor the student author appreciates why separation of powers is relevant in construing statutes. The point is rather simple. Regardless of the label — liberal or strict — the judiciary cannot interpret a statute so as to create either a crime or a punishment which is not within the statutory language. The theory that liberally construing a statute violates the doctrine of separation of powers has been labeled "clearly unsound". Note, Strict or Liberal Construction of Penal Statutes, 48 Harv. L. Rev. 748, 757 (1934-1935). Indeed, our Legislature has mandated a liberal construction of the alcohol beverage control act, RCW Title 66, including its penal provisions,
This court, like many others, has invoked the rule of lenity without any examination of its history, purpose and limitations. The Harvard Law Review note, cited above, provides an excellent discussion of its origin in the "unmitigated severity", often death, of punishment of numerous crimes in the 16th century.
However, "[applications of the early commоn-law rule of strict construction produced numerous examples of legislative frustration in the field of criminal law. Consequently, the legislatures of many states have abrogated or modified the rule." (Italics mine.) 3 N. Singer, Statutory Construction § 59.07, at 136 (5th ed. 1992).
Washington is among those states which have modified the rule. In 1909 the Legislature enacted its Criminal Code
The provisions of this title shall be construеd according to the fair import of their terms but when the language is susceptible of differing constructions it shall be interpreted to further the general purposes stated in this title.
N. Singer goes so far as to state that a similar provision abrogates the common law rule of strict construction. "One type of statute specifically abrogates the common-law rules of strict construction of penal statutes and provides, instead, that all penal statutes 'are to be construed according to the fair import of their terms, with a view to effect their objects and to promote justice.'" 3 N. Singer § 59.07, at 136.
The Oregon cоurt has recognized the proper application of such a statute. In State v. Moore,
Section 23-106, O.C.L.A., reheves us from applying the common law rule of strict construction to penal statutes and substitutes instead the duty to construe them "according to the fair import of their terms, with a view to effect its objects and to promote justice." A search for the fair import comprehends a reasonable and sensible construction. ...
Moore, at 46.
I find no Washington case which analyzes the meaning of
There is merit in the following admonition: "The rule of lenity, like other canons of construction, extends no further than the functions it serves. It does not preclude the implementation of the criminal law еvery time a statute needs
N. Singer suggests that "the conclusion is warranted that they [the cases] evince a wide-spread sentiment that the historic rule of strict construction of penal statutes is no longer justified or desirable. Modem emphasis of the use of fair procedures to determine when an individual is subject to penal liability suggests that procedural safeguards may now be more suitable than the safeguard of strict construction to protect the interests of individuals." 3 N. Singer § 59.07, at 137.
The United States Supreme Court, in two recent decisions, the first written by Chief Justice Rehnquist and the second by the late Justice Marshall, has put into reasonable perspective the proper scope and application of the rule of lenity, quite apart from any statute abrogating or modifying the common law rule.
In Chapman v. United States,
The rule of lenity, however, is not applicable unless there is a "grievous ambiguity or uncertainty in the language and structure of the Act," Huddleston v. United States,415 U. S. 814 , 831[,39 L. Ed. 2d 782 ,94 S. Ct. 1262 (1974)], such that even after a court has " 'seize[d] every thing from which aid can be derived,'" it is still "left with an ambiguous statute." United States v. Bass,404 U. S. 336 , 347[,30 L. Ed. 2d 488 ,92 S. Ct. 515 (1971) (quoting United States v. Fisher,2 Cranch 358 , 386[,2 L. Ed. 304 ] (1805)). "The rule [of lenity] comes into operation at the end of thе process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers." Callanan v. United States,364 U. S. 587 , 596[,5 L. Ed. 2d 312 ,81 S. Ct. 321 ] (1961).
Justice Marshall's opinion likewise makes clear that the rule of lenity is one carefully circumscribed.
Because it is possible to read the statute as applying only to forged or counterfeited securities, and because some courts have so read it, Moskal suggests we should simply resolve the issue in his favor under the doctrine of lenity. . . .
In our view, this argument misconstrues the doctrine. We have repeatedly "emphasized that the 'touchstonе1 of the rule*795 of lenity 'is statutory ambiguity.'" Bifulco v. United, States,447 U. S. 381 , 387[,65 L. Ed. 2d 205 ,100 S. Ct. 2247 ] (1980), quoting Lewis v. United States,445 U. S. 55 , 65[,63 L. Ed. 2d 198 ,100 S. Ct. 915 ] (1980). Stated at this level of abstraction, of course, the rule
"provides little more than atmospherics, since it leaves open the crucial question — almost invariably present — of how much ambiguousness constitutes . . . ambiguity." United States v. Hansen, 249 U. S. App. D. C. 22, 30,772 F. 2d 940 , 948 (1985) (Scalia, J.) (emphasis added), cert. denied,475 U. S. 1045 [,89 L. Ed. 2d 571 ,106 S. Ct. 1262 ] (1986).
Because the meaning of language is inherently contextual, we have declined to deem a statute "ambiguous" for purposes of lenity merely because it was possible to articulate a construction more narrow than that urged by the Government. See, e. g., McElroy v. United States,455 U. S. 642 , 657-658[,71 L. Ed. 2d 522 ,102 S. Ct. 1332 ] (1982). Nor have we deemed a division of judicial authority automatically sufficient to trigger lenity. See, e. g., United States v. Rodgers,466 U. S. 475 , 484[,80 L. Ed. 2d 492 ,104 S. Ct. 1942 ] (1984). . . . Instead, we have always reserved lenity for those situations in which a reasonable doubt persists about a statute's intended scope even after resort to "the language and structure, legislative history, and motivating policies" of the statute. Bifulco v. United States, supra, at 387 . . ..
(Citations omitted.) Moskal v. United States,
It must be noted that Chapman v. United States, supra, holds that the rule of lenity is not applicable unless there is a grievous ambiguity or uncertainty in the language and structure of the act.
On occasion we have declared a more reasonable view. In State v. Carter,
In State v. Rinkes,
Where an act has a doubtful or ambiguous meaning, it is the duty of the court to adopt a construction that is reasonably liberal, in furtherance of the obvious or manifest purpose of the legislature. . . .
*796 Penal statutes are to be construed strictly, to the end that offenses not entitled to be included shall not be prosecuted. But they are not to be construed so strictly that they would be defeated by a forced and over-strict construction. State v. Larson, 119 Wash. 123, 125, 204 Pac. 1041 (1922), and cases cited.
Strict construction of a penal statute means merely that the punitive sanctions must be confined to such matters as are clearly and manifestly within the statutory terms and purposes. It does not mean that a forced, narrow, and over-strict construction should be applied to defeat the obvious intent of the legislature.
Rinkes, at 667.
In summary, the rule of lenity, in an appropriate case, should be reexamined and not applied, as we have and as the dissent urges, every time there is a possible alternative reading of a criminal statute,
In any event, I repeat that the dissent is in dangerous error in how it finds ambiguity. No separation of powers issue is presented here, and finally the rule of lenity bears no consideration here under the solidly reasoned majority.
Durham, J., concurs with Brachtenbach, J.
Dissenting Opinion
(dissenting) — I disagree with the majority's conclusion that
This case involves a statute that is capable of and has been reasonably interpreted two ways. The first rule of construction ignored by the majority is that a statute is ambigú
The violation at issue in this case is the enhanced penalty for "possessing with the intent to . . . deliver a controlled substance ... to a person . . . within one thousand feet" of a school.
The majority correctly notes
Under the majority's reading of
Thus, because I find a substantial split of authority on this issue and because I find the defendant's interpretation of
Finding an ambiguity, I would next look to the legislative intent and attempt to give meaning to the statute in accord with that intent. See In re Marriage of Kovacs,
While this is a lofty goal, it suggests the majority misunderstands its role when it interprets a statute. Rather than attempting to give meaning to
Faced with an ambiguity and finding no clear guidance from the Legislature, I would turn to one final rule of con
In Roberts this court also faced an ambiguous sentencing provision. The only issue on appeal was whether, under
Here, the inherent ambiguity and lack of legislative guidance similarly dictates we apply the rule of lenity to arrive at the interpretation of the statute most favorable to this defendant. The reading of
Fоr the foregoing reasons, I would reverse the defendant's sentence enhancement under
Utter, Smith, and Madsen, JJ., concur with Johnson, J.
Notes
State v. Wimbs,
United States v. Watson,