State v. Adlington-Kelly , 95 Wash. 2d 917 ( 1981 )

Utter, J.

(dissenting) — State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978), is controlling and warrants the reversal of this case.

The thrust of the majority's argument is that Workman is distinguishable because the robbery statutes are ambiguous while the assault provisions are not. The applicable robbery statute provides:

(1) A person is guilty of robbery in the first degree if in the commission of a robbery or of immediate flight therefrom, he:

(a) Is armed with a deadly weapon; or

(b) Displays what appears to be a firearm or other deadly weapon; or

(c) Inflicts bodily injury.

(2) Robbery in the first degree is a class A felony.

RCW 9A.56.200. The first degree assault provision states:

(1) 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 or any deadly weapon or by any force or means likely to produce death; or

(b) Shall administer to or cause to be taken by another, poison or any other destructive or noxious thing so as to endanger the life of another person.

(2) Assault in the first degree is a class A felony.

RCW 9A.36.010. Both statutes, when viewed alone, are not ambiguous; and the statute for robbery is no more ambiguous than that for assault.

The ambiguity to which Workman referred was that when the first degree robbery and firearm enhancement provisions are considered together, it is unclear whether the legislature intended both to apply. In explaining Simpson v. United States, 435 U.S. 6, 55 L. Ed. 2d 70, 98 S. Ct. 909 (1978), and also explicative of the Workman rationale, Justice Rehnquist has recently stated:

Simpson, however, was based to an unstated degree on this Court's assumption that § 924(c) raised "the prospect of double jeopardy" because it provided for additional punishment on "precisely the same factual showing" as would be necessary for conviction of the underlying felony involved in that case.

Busic v. United States, 446 U.S. 398, 418, 64 L. Ed. 2d 381, 100 S. Ct. 1747 (1980) (Rehnquist, J., dissenting). That is exactly the same problem (and to use Workman's vernacular, the same ambiguity) which arises when the first degree assault and firearm statutes are viewed together.

In Busic, the United States Supreme Court rejected the very reasoning used by the majority. There, two punishment statutes⁹ were not ambiguous by themselves, but when considered together they did not reveal which one was to apply. The government argued that Simpson did not control because the statutes in Busic were not ambiguous and, therefore, the "rule of lenity" and other statutory rules of construction, used in Simpson, were not applicable. Busic, at 407. To that, the court stated:

[T]he claim that there exists no ambiguity does not stand up. Plainly the text of the statute fails to address the issue pertinent to decision of this case — whether Congress intended (1) to provide for enhanced penalties only for crimes not containing their own enhancement provisions, (2) to provide an alternative enhancement provision applicable to all felonies, or (3) to provide a duplicative enhancement provision which would permit double enhancement where the underlying felony was proscribed by a statute like § 111. Our task here, as in Simpson, is to ascertain as best we can which approach Congress had in mind. The rule of lenity, like reference to appropriate legislative materials, is one of the tools we use to do so.

Busic, at 407. The court further noted that in interpreting punishment enhancing statutes, they should not be read to increase or multiply punishment "absent a clear and definite legislative directive.'" Busic, at 406-07.

That clear legislative directive is as absent in the first degree assault statute as it was in the robbery provisions reviewed in Workman. When RCW 9A.36.010 and RCW 9.41.025 are read together, it is unclear whether the legislature intended both to apply.

The majority also attempts to underplay the significance of Workman by stating that the use of a firearm is not a necessary element of first degree assault. Interestingly enough, the use of a firearm is also not a necessary element of the first degree robbery statutes reviewed in Workman. Under RCW 9A.56.200(l)(c), one can commit first degree robbery by simply inflicting bodily injury. Therefore, use of a firearm is not an indispensable condition for first degree robbery, just as it is not for first degree assault.

The majority's "intent" distinction is similarly without foundation. It states that the degrees of assault, as opposed to those of robbery, are determined by the intent of the defendant. First degree assault involves the "intent to kill," it states, whereas second degree assault only requires the "intent to injure." I do not believe this is correct. For example, a defendant with the intent to kill, but who assaults the victim with a relatively innocuous object not likely to produce death, is only guilty of second degree assault. The intent to kill does not invariably lead to a first degree conviction.

The majority justifies its result by asking the question: "Can we in any way presume that the legislature did not intend that one who was convicted of assault in the first degree with a firearm would not also have his penalty enhanced?"¹⁰ Majority opinion, at 925. By asking that question, the majority reveals a misperception of the problem, for the legislature by providing for varying degrees of assault has already enhanced the penalties when a firearm is used. The majority's approach is also inconsistent with our judicial role. As noted by the United States Supreme Court:

[T]he Government's argument is not that our construction reads Congress to have diminished the penalty for firearm use, but only that our construction fails to enhance that penalty to the hilt. Yet it is patently clear that Congress too has failed to enhance that penalty to the hilt — it set maximum sentences as well as a variety of other limits on the available punishment. Thus, while Congress had a general desire to deter firearm abuses, that desire was not unbounded. Our task here is to locate one of the boundaries, and the inquiry is not advanced by the assertion that Congress wanted no boundaries.

Busic, at 408. Similarly, in response to the argument that selectively applying the firearm provision may result in anomalies not intended by the legislature,¹¹ the court stated:

[T]o the extent that cases can be hypothesized in which this holding may support curious or seemingly unreasonable comparative sentences, it suffices to say that the asserted unreasonableness flows not from Simpson and this decision, but rather from the statutes as Congress wrote them. If corrective action is needed, it is the Congress that must provide it. "It is not for us to speculate, much less act, on whether Congress would have altered its stance had the specific events of this case been anticipated." TVA v. Hill, 437 U. S. 153, 185 (1978).

Busic, at 404-05.

Since this case cannot, with any analytical purity, be distinguished from Workman, RCW 9.41.025 cannot be read to augment the punishment for first degree assault. Workman held that the firearm enhancement statute is inapplicable to convictions for first degree robbery, because the robbery and firearm provisions do not clearly state whether both are to apply. Confronted with that ambiguity, we applied the rules of statutory construction to reach the Workman result.

Given, as shown above, that the first degree assault and firearm enhancement statutes have the same ambiguity that was present in Workman, and since the same rules of statutory construction are equally applicable to the statutes of this case, I must conclude that RCW 9.41.025 cannot enhance the punishment for first degree assault.

That is precisely the result we predicated in State v. Foster, 91 Wn.2d 466, 589 P.2d 789 (1979). There, we stated that "[h]ad appellant been convicted of assault in the first degree under RCW 9A.36.010(l)(a)," RCW 9.41-.025 might not have been applicable. Foster, at 477. We made that statement because, as the appellant there argued, RCW 9.41.025 by its express terms "does not apply to conviction for offenses which require the use of a deadly weapon ..." Foster, at 477.

Workman requires that the decision of the Court of Appeals be reversed.

Reconsideration denied October 6, 1981.

9 The two statutes are 18 U.S.C. § 111 and 18 U.S.C. § 924(c).

18 U.S.C. § 111 provides as follows:

"Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of his official duties, shall be fined not more than $5,000 or imprisoned not more than three years, or both.

"Whoever, in the commission of any such acts uses a deadly or dangerous weapon, shall be fined not more than $10,000 or imprisoned not more than ten years, or both."

18 U.S.C. § 924(c) provides:

"Whoever—

” (1) uses a firearm to commit any felony for which he may be prosecuted in a court of the United States, or

"(2) carries a firearm unlawfully during the commission of any felony for which he may be prosecuted in a court of the United States[,]

"shall, in addition to the punishment provided for the commission of such felony, be sentenced to a term of imprisonment for not less than one year nor more than ten years. In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to a term of imprisonment for not less than two nor more than twenty-five years and, notwithstanding any other provision of law, the court shall not suspend the sentence in the case of a second or subsequent conviction of such person or give him a probationary sentence, nor shall the term of imprisonment imposed under this subsection run concurrently with any term of imprisonment imposed for the commission of such felony."

10 To support its reading of legislative intent, the majority cites the recent amendment nullifying the Workman result. Majority opinion, at 925. That amendment, rather than supporting the majority's decision, constitutes an acknowledgment by the legislature that RCW 9.41.025 had been ambiguous and was not the clear directive required by the United States Supreme Court. Moreover, that amendment cannot be applied retroactively, which is the effect of the majority opinion. At the time of this appeal, Workman was still the law and we cannot refuse to apply that law because of post hoc legislative enactments.

11 If my position were accepted, then under the existing statutes RCW 9.41.025 would apply to second but not first degree assault. See State v. Foster, 91 Wn.2d 466, 589 P.2d 789 (1979).