138 Wash. 2d 466 | Wash. | 1999
— Petitioners Isaac Donald Sweet and Robert
QUESTIONS PRESENTED
The primary question presented in these consolidated cases is whether the burglary “anti-merger” statute, RCW 9A.52.050, prevents merger of convictions for first-degree assault and first-degree burglary.
Secondary questions presented are: (1) whether the testimony of a detective concerning statements by a defendant violates the defendant’s right to remain silent under the Fifth Amendment; and (2) whether egregious conduct of one codefendant may be used to justify an aggravated exceptional sentence for the other codefendant.
STATEMENT OF FACTS
On August 29, 1995 Petitioner Robert James Slaton appeared at the residence of Mrs. Judith Schuh to ask if his son could play on her rural nine-acre property located in Pierce County.
During his conversation with Mrs. Schuh, Petitioner Slaton asked to use her bathroom.
Soon after the incident the pickup truck driven by Petitioner Slaton was seen by a witness leaving the Schuh’s driveway with two persons in it.
The husband of Mrs. Schuh, Ronald Schuh, suspected her nephew Petitioner Sweet was involved in the incident because he knew the location of the safe, he having lived on the their property for several years,
In September 1995 a campsite was discovered near the Schuh residence with the discarded canopy of the truck and the Schuh’s stolen safe.
. On October 6, 1995 a police investigator contacted Petitioner Sweet in Montana where he was in custody on an unrelated charge.
Petitioner Slaton was arrested by the Canon City Police Department in Canon City, Colorado on an outstanding arrest warrant issued by the Pierce County Superior Court relating to the August 30, 1995 incident which resulted in injury to Mrs. Schuh.
Based upon the August 30, 1995 incident Petitioner Rob
The Informations in the two cases in identical language in three counts read:
COUNT I
I, JOHN W. LADENBURG, Prosecuting Attorney for Pierce County, in the name and by the authority of the State of Washington, do accuse [name of defendant] of the crime of ASSAULT IN THE FIRST DEGREE, committed as follows:
That [name of defendant], or an accomplice, in Pierce County, Washington, on or about the 30th day of August, 1995, did unlawfully and feloniously with intent to inflict great bodily harm, assault Ms. Judith Schuh and inflict great bodily harm, contrary to RCW 9A.36.011(l)(c), and against the peace and dignity of the State of Washington.
COUNT II
And I, JOHN W. LADENBURG, Prosecuting Attorney aforesaid, do accuse [name of defendant] of the crime of BURGLARY IN THE FIRST DEGREE, a crime based on the same conduct or series of acts connected together, and/or so closely connected in respect to time, place and occasion that it would be difficult to separate proof of the others, committed as follows:
That [name of defendant], or an accomplice, in Pierce*474 County, Washington, on or about the 30th day of August, 1995, did unlawfully and feloniously with intent to commit a crime against a person or property therein, enter or remain unlawfully in a building, located at 19214 Patterson Rd. E., and in entering or while in such building or in immediate flight therefrom, the defendant or another participant in the crime did assault Ms Judith Schuh, a person therein, contrary to RCW 9A.52.020(l)(b) as amended by Washington Session Laws, Chapter 129, and against the peace and dignity of the State of Washington.
COUNT III
And, I, JOHN W. LADENBURG, Prosecuting Attorney aforesaid, do accuse [name of defendant] of the crime of CRIMINAL CONSPIRACY TO COMMIT BURGLARY IN THE FIRST DEGREE, a crime based on the same conduct or series of acts connected together, and/or so closely connected in respect to time, place and occasion that it would be difficult to separate proof of one charge from proof of the others, committed as follows:
That [name of defendant], in Pierce County, Washington, on or about the 30th day of August, 1995, did unlawfully and feloniously agree with one or more persons, to-wit: [other named defendant], to engage in or cause the performance of conduct constituting the crime of BURGLARY IN THE FIRST DEGREE, with the intent that such conduct be performed, and one or more of the persons involved in the agreement took a substantial step in pursuance of the agreement, contrary to RCW 9A.28.040 and RCW 9A.52.020(l)(b), and against the peace and dignity of the State of Washington.
On May 22, 1996 Petitioner Slaton was sentenced by the Honorable Sergio Armijo to an aggravated exceptional sentence of 360 months on the first count, 116 months on the second count, and 87 months on the third count, the sentences to run concurrently.
Petitioner Sweet appealed his conviction, asserting among other things, that the trial court erred (1) because the federal and state double jeopardy clauses barred his conviction on first-degree assault and first-degree burglary;
Petitioner Slaton appealed, asserting that “(1) first degree assault cannot be charged separately under the burglary anti-merger statute; ... (2) first degree assault, first degree burglary, and conspiracy to commit burglary constitute the same criminal conduct; . . . [and (3)] the trial court denied him the right of allocution.”
The Court of Appeals (Chief Judge Elaine Houghton writing) in a partially published opinion affirmed Petitioner Sweet’s conviction in its entirety.
We granted review in both cases on February 2, 1999 and consolidated them because of the common issue of whether the convictions for first-degree assault should be merged with the convictions for first-degree burglary.
DISCUSSION
The first-degree assault statute, RCW 9A.36.011(l)(c), reads:
(1) A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm:
(c) Assaults another and inflicts great bodily harm.
The first-degree burglary statute, RCW 9A.52.020(l)(b), reads:
(1) A person is guilty of burglary in the first degree if, with intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building and if, in entering or while in the building or in immediate flight therefrom, the actor or another participant in the crime . . . (b) assaults any person.
The burglary “anti-merger” statute, RCW 9A.52.050, reads:
Every person who, in the commission of a burglary shall commit any other crime, may be punished therefor as well as for the burglary, and may be prosecuted for each crime separately.
In State v. Johnson
If this section [RCW 9A.52.050, the burglary “anti-merger” statute] is read with RCW 9A.52.020 and .030, defining burglary in the first and second degrees, it will be seen that, while subsection (1) of .020 includes assault as an element, subsection (1) of .030 involves no other offense. Both, however, have as an element the intent to commit another crime. It would appear, therefore, that RCW 9A.52.050 has reference to such other crimes, rather than to the assault which is an element of first-degree burglary.[51]
Although the Court of Appeals, Division Three, following Johnson, has approved merger of assault with first-degree burglary upon convictions for both,
“Merger is a rule of statutory interpretation.”
“The [merger] doctrine arises only when a defendant has been found guilty of multiple charges, and the court then asks if the Legislature intended only one punishment for the multiple convictions.”
The plain language of RCW 9A.52.050 expresses the intent of the Legislature that “any other crime” committed in the commission of a burglary would not merge with the offense of first-degree burglary when a defendant is convicted of both. In this instance the “other crime” is assault. The statute does not evidence a contrary intent.
It is correct to conclude that Johnson does not reflect the prevailing opinion of this court concerning the burglary “anti-merger” statute. In Bonds we concluded that burglary does not merge with first degree rape,
Petitioner Sweet claims he was not in the Schuh residence and thus could not be held responsible for the burglary and assault. Even assuming the jury might have believed he did not enter the house, it is not necessary for him to have been in the Schuh residence on August 30, 1995 to be charged with and convicted of first-degree burglary and assault because he was charged as an accomplice and the trial court instructed the jury on accomplice liability.
Petitioner Sweet participated with Petitioner Slaton in planning the burglary. He knew the location of the Schuhs’ safe. Petitioner Slaton did not. Although Petitioner Sweet denies entering the Schuh residence, there is strong circumstantial evidence that he did enter and assisted Petitioner Slaton in removing the safe from the home, the safe weighing about 300 pounds, and the absence of dam
Additionally, the jury convicted Petitioner Sweet of conspiracy to commit the crime of burglary in the first degree. This to some extent is further indication the jury was convinced of his involvement in the burglary of the Schuh residence and the consequent assault upon Mrs. Schuh.
Fifth Amendment Right to Remain Silent
Petitioner Sweet asserts that his Fifth Amendment right to remain silent was violated during the testimony of Pierce County Sheriffs Deputy Donald Wagner. Deputy Wagner testified “I asked him if he would want to take a polygraph examination when he returned to our jurisdiction, .... He indicated that he would be willing to do that when he got back”
The right to remain silent, or the privilege against self-incrimination, is based upon Amendment V of the United States Constitution which provides in pertinent part that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself . . . .” “The purpose of the right is . . . eto spare the accused from having to reveal, directly or indirectly, his knowledge of facts relating him to the offense or from having to share his thoughts and beliefs with the Government.’ ”
Petitioner Sweet compares Deputy Wagner’s testi
Aggravated Exceptional Sentence
Petitioner Sweet challenges his exceptional sentence of 342 months for his conviction of assault in the first degree.
(1) [T]he defendant’s conduct during the commission of the offense manifested deliberate cruelty to the victim, and multiple incidents to the victim. That the victim, Judith Schuh, was struck from behind on the head causing her to fall to the ground. Once on the ground the victim was repeatedly struck over her entire face and body as evidenced by the severe bruising covering her face and body.
(2) The severity of the injury to the victim, Judith Schuh, is also an aggravating factor justifying grounds for an exceptional sentence. The harm inflicted upon victim Judith Schuh was far greater than necessary to establish the crimes. . . .
(3) The defendant’s conduct was far more egregious than typical in such a case, and is therefore an additional aggravating factor justifying an exceptional sentence. The harm inflicted upon the victim was far greater than necessary and covered her entire body. . . .
(4) The defendant’s knowledge that the victim, Judith Schuh, was particularly vulnerable .... [He] knew that the victim would be incapable of defending herself because of her age and stature. The victim, Mrs. Schuh, is a small woman of 5'2" tall. She was 52 years old when the crime was committed. The defendant knew that the victim would be home alone as her husband routinely left early each morning for work. The victim’s home is isolated in a rural area of Orting, Washington. The victim’s home is surrounded by approximately 9 acres of property. There were no neighbors on the victim’s property, and no one to help victim Judith Schuh. The defendant is 5'8" tall and weighs 290 pounds. The defendant’s accomplice is 6'5" tall and weighs approximately 240 pounds.
(5) The defendant’s use of his position of trust and confidence to facilitate the commission of the offense .... The defendant is the nephew of the victims Ronald and Judith Schuh. The defendant lived on the Schuh property off and on during a five year period from approximately 1989 until 1993. During the time that the defendant lived on the Schuh property he was shown the safe that contained money, jewelry and other valuables concealed in the victim’s bedroom. Only someone fa*483 miliar with the safe would have known of its existence, and location concealed from view in a nightstand. The defendant also knew that his aunt, Judith Schuh, would be home alone during the day with his uncle, Ronald Schuh, at work. The defendant knew that Mrs. Schuh was a homemaker who did not work outside the home, and had not worked during the time period that the defendant lived on the Schuh property. The safe and its contents were the only items stolen in the burglary.[81]
A trial court may impose an exceptional sentence outside the standard range when there are “substantial and compelling” reasons.
Under the facts in this case, the instructions to the jury, and the verdict of the jury, the trial court properly concluded that Petitioner Sweet engaged in manifest deliberate cruelty to the victim, Mrs. Judith Schuh; that Mrs. Schuh suffered severe injury; that Petitioner’s conduct was more egregious than typical; that Petitioner knew Mrs. Schuh was particularly vulnerable; and Petitioner used his position of trust and confidence (as nephew of Mrs. Schuh) to facilitate commission of the crime. For these reasons the court concluded it was appropriate to go beyond the standard range sentence of 129 months to 171 months.
We therefore affirm the decisions of the Court of Appeals in the cases of both Petitioner Robert James Slaton and Petitioner Isaac Donald Sweet.
SUMMARY AND CONCLUSIONS
Petitioner Isaac Donald Sweet and Petitioner Robert James Slaton were convicted in separate jury trials on one count each of first-degree assault, first-degree burglary and criminal conspiracy to commit burglary in the first degree based upon the brutal beating of Mrs. Judith Schuh and the burglary of her residence. In their separate appeals Petitioners asserted that, despite the burglary “anti-merger” statute, RCW 9A.52.050, their assault convictions should merge with their burglary convictions. The cases were consolidated for a hearing before this court.
Merger is a rule of statutory interpretation and applies only where the Legislature has clearly indicated that it should. A reading of RCW 9A.52.050 leads to the conclusion that the Legislature did not intend that burglary in the first degree based upon an assault would be merged with the separately charged offense of assault upon conviction for both crimes. This court adopted such an interpretation of RCW 9A.52.050 in State v. Bonds and State v. Collicott. The trial courts and the Court of Appeals correctly determined that Petitioners Sweet’s and Slaton’s convictions for assault in the first degree and burglary in the first degree should not be merged.
Petitioner’s Fifth Amendment right to remain silent was not violated by the testimony of Deputy Donald Wagner. The testimony is at best a mere reference to silence which is not a “comment” on the silence and is not reversible error absent a showing of prejudice. Petitioner has not demonstrated that he was prejudiced by the testimony. Even assuming it might have been error to admit the testimony of Deputy Wagner, the error was harmless.
The trial court’s reasons for imposing an aggravated exceptional sentence upon Petitioner Sweet were not “clearly erroneous” under the circumstances of this case. The court in its findings of fact and conclusions of law articulated, as a matter of law, sufficient reasons to justify an exceptional sentence above the standard range.
We affirm the decisions of the Court of Appeals, Division Two, in the cases of Petitioners Isaac Donald Sweet and Robert James Slaton which affirmed the decisions of the Pierce County Superior Court declining to merge their convictions for first-degree assault and first-degree burglary. We also affirm the conclusions of the Court of Appeals in all other respects in the case of Petitioner Sweet.
Guy, C.J., and Durham, Johnson, Alexander, Talmadge, Sanders, and Ireland, JJ., concur.
Madsen, J, concurs in the result.
State v. Sweet, 91 Wn. App. 612, 614, 959 P.2d 677 (1998), review granted, 137 Wn.2d 1007 (1999).
Id.
Id. at 614-15.
Id.
Id. at 615.
Id. at 616.
Id. at 615.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Pet’r Sweet’s Clerk’s Papers at 4-5.
Id. at 5.
Sweet, 91 Wn. App. at 614.
Id
ld. at 615.
Id.
Id.
Pet’r Sweet’s Clerk’s Papers at 5.
Id.
Sweet, 91 Wn. App. at 615.
Id.
Id.
Id. at 616.
Pet’r Sweet’s Clerk’s Papers at 5; see also Sweet, 91 Wn. App. at 615.
Pet’r Sweet’s Clerk’s Papers at 5.
Sweet, 91 Wn. App. at 615.
Id. at 615-16.
Pet’r Sweet’s Clerk’s Papers at 51.
Id.
Id. at 66.
Id. at 67.
Id. at 69.
Id.
Pet’r Sweet’s Clerk’s Papers at 1-3; Pet’r Slaton’s Clerk’s Papers at 1-3.
40Pet’r Sweet’s Clerk’s Papers at 121-23; Pet’r Slaton’s Clerk’s Papers at 41-
Pet’r Slaton’s Clerk’s Papers at 94-95.
Sweet, 91 Wn. App. at 616. See also Petitioner Sweet’s Clerk’s Papers at 313.
Sweet, 91 Wn. App. at 616; State v. Slaton, No. 20778-8-II (Wash. Ct. App. Sept. 25, 1998).
Sweet, 91 Wn. App. at 616.
State v. Sweet, No. 21019-3-II, slip op. at 9 (Wash. Ct. App. July 17, 1998).
Id. at 17.
Slaton at 2.
State v. Sweet, 91 Wn. App. 612, 614, 959 P.2d 677 (1998); See also State v. Sweet, No 21019-3-II (Wash. Ct. App. July 17, 1998).
Slaton.
92 Wn.2d 671, 600 P.2d 1249 (1979), cert. dismissed, 446 U.S. 948, 100 S. Ct. 2179, 64 L. Ed. 2d 819 (1980).
51Id. at 677. (Footnote omitted.)
State v. Ortiz, 77 Wn. App. 790, 895 P.2d 845 (1995).
State v. Hunter, 35 Wn. App. 708, 669 P.2d 489 (1983); State v. Fryer, 36 Wn. App. 312, 673 P.2d 881 (1983); State v. Davison, 56 Wn. App. 554, 784 P.2d 1268 (1990).
Hunter, 35 Wn. App. at 717; citing State v. Hoyt, 29 Wn. App. 372, 378, 628 P.2d 515 (1981).
98 Wn.2d 1, 653 E2d 1024 (1982).
Fryer at 315-16.
Bonds at 15; citing State v. Thompson, 88 Wn.2d 13, 17, 558 P.2d 202 (1977).
Strenge v. Clarke, 89 Wn.2d 23, 29, 569 P.2d 60 (1977).
State v. McDougal, 120 Wn.2d 334, 350, 841 P.2d 1232 (1992); citing State v. Fjermestad, 114 Wn.2d 828, 835, 791 P.2d 897 (1990).
State v. Michielli, 132 Wn.2d 229, 237, 937 P.2d 587, reconsideration denied, (Jul. 22, 1997).
Erection Co. v. Department of Labor & Indus., 121 Wn.2d 513, 518, 852 P.2d 288 (1993).
Michielli at 238.
State v. Vladovic, 99 Wn.2d 413, 420-21, 662 P.2d 853 (1983).
Bonds at 15-16.
State v. Collicott, 118 Wn.2d 649, 657-58, 827 P.2d 263 (1992).
Pet’r Sweet’s Clerk’s Papers at 131.
State v. Boast, 87 Wn.2d 447, 456, 553 P.2d 1322 (1976).
State v. Davis, 101 Wn.2d 654, 682 P.2d 883 (1984).
Id.
Sweet, 91 Wn. App. at 615.
State v. Sweet, Pierce County Superior Court No. 96-1-00378-8, 2 Verbatim Report of Proceedings at 158-59.
Id. at 181.
State v. Easter, 130 Wn.2d 228, 241, 922 P.2d 1285 (1996) (citing Doe v. United States, 487 U.S. 201, 213, 108 S. Ct. 2341, 101 L. Ed. 2d 184 (1988)).
State v. Easter, 130 Wn.2d 228, 922 P.2d 1285 (1996).
M at 233.
Id. at 234.
State v. Lewis, 130 Wn.2d 700, 706-07, 927 P.2d 235 (1996), citing Tortolito v. State, 901 P.2d 387, 390 (Wyo. 1995).
Easter, 130 Wn.2d at 242.
Pet’r Sweet’s Clerk’s Papers at 313. Petitioner’s sentences for burglary in the first degree and conspiracy to commit burglary in the first degree were within the standard range. See Pet’r Sweet’s Clerk’s Papers at 307.
Pet’r Sweet’s Pet. for Review at 18.
81Pet’r Sweet’s Clerk’s Papers at 307-10.
State v. Gaines, 122 Wn.2d 502, 507, 859 P.2d 36 (1993). See RCW 9.94A.120(2).
State v. Garza, 123 Wn.2d 885, 889, 872 P.2d 1087 (1994).
Pet’r Sweet’s Clerk’s Paper at 307.
Gaines at 512 (citing State v. Harding, 62 Wn. App. 245, 813 P.2d 1259, review denied, 118 Wn.2d 1003, 822 P.2d 287 (1991)) (exceptional sentence upheld where two of three aggravating factors invalidated).