State v. Recuenco , 163 Wash. 2d 428 ( 2008 )

¶29 (dissenting) — Arturo R. Recuenco’s sentence included a firearm enhancement although the jury was asked and found beyond a reasonable doubt only that he had been armed with a deadly weapon. It is undisputed that imposing a firearm enhancement based on a deadly weapon finding violated Recuenco’s Sixth and Fourteenth Amendment jury trial right as defined by Apprendi⁸ and Blakely.⁹ Under federal law, “[fjailure to submit a sentencing factor to the jury, like failure to submit an element to the jury,” is subject to harmless error analysis. Washington v. Recuenco, 548 U.S. 212, 222, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006) (Recuenco II). The central question in this case is whether harmless error analysis applies under Washington law and, if so, whether the error in this case was harmless.¹⁰ I would hold that under Washington law the failure to submit a sentencing factor to a jury is subject to harmless error analysis and, in this case, entry of the firearm enhancement based on a deadly weapon finding was harmless. I would also hold that because Recuenco challenged the charging document for the first time after the jury issued its verdict, the charging document was sufficient under the more liberal standard of review that applies to postverdict challenges to charging documents.

Fairhurst, J.

I. HARMLESS ERROR ANALYSIS

A. The failure to submit a sentencing factor to a jury is subject to harmless error analysis under Washington law

f 30 The failure to submit a sentencing factor to a jury is subject to harmless error analysis because such analysis is not prohibited by the state jury trial right and is dictated by controlling precedent. When presented with claims under the state jury trial right,¹¹ we conduct a focused examination of the specific right asserted as it existed at the time that the state constitution was adopted.¹² State v. Hobble, 126 Wn.2d 283, 300, 892 P.2d 85 (1995).

¶31 In Washington, the practice of applying harmless error analysis predates statehood. The Territory of Washington was governed by the Code of 1881, which provided, with respect to appellate procedure, that “[o]n hearing of writs of error, the supreme court . . . shall give judgment without regard to technical errors or defects, or exceptions which do not affect the substantial rights of the defendant.” Code of 1881, ch. XCI, § 1147. In cases contemporaneous with the 1889 enactment of the Washington Constitution, this court routinely applied harmless error analysis to instructional errors involving elements of crimes. McClaine v. Territory, 1 Wash. 345, 351-53, 25 P. 453 (1890) (noting that a jury instruction that misstated an element of a crime “might possibly be overlooked” if the “instruction [was] cured or explained by any other instruction” and considering whether an insufficient instruction would mislead the jury); State v. Conahan, 10 Wash. 268, 268-69, 38 P. 996 (1894) (affirming a conviction despite an erroneous jury instruction regarding a burden of proof because the defendant would have been convicted regardless of whether the correct instruction was given). In State v. Courtemarch, 11 Wash. 446, 39 P. 955 (1895), this court expressly used the language now associated with harmless error analysis. With respect to an instructional error, this court stated, “[fit was at most merely harmless error not tending to the prejudice of the substantial rights of the defendant.” Id. at 450 (internal quotation marks omitted).

¶32 Despite the pervasive use of harmless error analysis around the time of the constitution’s enactment, Recuenco argues that per se reversal is warranted because the state jury trial right entitles the accused to “the right to have the jury pass upon every substantive fact going to the question of his guilt or innocence.” State v. Strasburg, 60 Wash. 106, 118, 110 R 1020 (1910). Strasburg does not support per se reversal. The Strasburg court held that due process and the jury trial right guaranteed a criminal defendant the right to present an insanity defense, rendering a statute to the contrary unconstitutional. Id. at 115,121. Strasburg did not address what the jury trial right guaranteed with respect to the failure to obtain a jury finding on an element of the charged crime, and, thus, the court did not have an opportunity to apply harmless error analysis.

¶33 As the Code of 1881, McClaine, Conahan, and Courtemarch demonstrate, the state constitution’s jury trial right does not prohibit applying harmless error analysis to the failure to submit an element to the jury. Correspondingly, the jury trial right does not prohibit applying harmless error analysis to the analogous error of the failure to submit a sentencing factor to the jury.

¶34 Controlling precedent dictates that the failure to submit a sentencing factor to a jury is subject to harmless error analysis.¹³ Our 2002 decision in State v. Brown plainly and conclusively announced the rule governing applicability of harmless error analysis to the failure to submit an element and, by extension, a sentencing factor to the jury. 147 Wn.2d 330, 58 P.3d 889 (2002) (considering faulty accomplice liability instruction). Brown held that “an erroneous jury instruction that omits or misstates an element of a charged crime is subject to harmless error analysis to determine whether the error has not relieved the State of its burden to prove each element of the case.” Id. at 344. The Brown court explained that while “[a]n instruction that relieves the State of its burden to prove every element of a crime requires automatic reversal... not every omission or misstatement in a jury instruction relieves the State of its burden.” Id. at 339 (footnote omitted).

¶35 Contrary to Recuenco’s assertion, State v. Jackson, 137 Wn.2d 712, 976 P.2d 1229 (1999), does not support a rule of automatic reversal. Jackson held that an instructional error that improperly defined the elements of accomplice liability constituted reversible error. Id. at 715. In discussing harmless error, the Jackson court recited our oft-quoted statement that “ ‘[t]he State must prove every essential element of a crime beyond a reasonable doubt for a conviction to be upheld. It is reversible error to instruct the jury in a manner that would relieve the State of this burden.’ ” Id. at 727 (quoting State v. Byrd, 125 Wn.2d 707, 713-14, 887 P.2d 396 (1995)). The Jackson court concluded that the instructional error at issue was “not susceptible to harmless error analysis.” Id. Recuenco reads “not susceptible to” to mean not subject to harmless error analysis, in other words, requiring automatic reversal.

¶36 “Susceptible to,” without context, is ambiguous as to whether the Jackson court was determining if harmless error analysis were applicable or what result was produced by that analysis. However, the court unmistakably reached its determination that the error required reversal by applying harmless error analysis. The court engaged in a thorough examination of the particular circumstances presented in the case, clearly considering whether, in light of those circumstances, the error in the specific instruction was harmless or prejudicial.

f 37 The Jackson court would not have applied harmless error analysis if it were following a rule that any error in instructing the jury on an element of the crime is per se reversible error. Therefore, by stating that the error was “not susceptible to harmless error analysis,” the court must have meant that it had concluded, by applying harmless error analysis to the facts before it, that the error at issue was not harmless. Jackson does not support Recuenco’s proposed rule that instructional errors resulting in the failure to submit an element, or a sentencing factor, to the jury are per se reversible error.

¶38 Recuenco’s reliance on State v. Cronin, 142 Wn.2d 568, 14 P.3d 752 (2000), is similarly misplaced. Like Jackson, Cronin held that erroneous instructions improperly defining “accomplice liability” constituted reversible error. Id. at 570. The Cronin court “first observe[d] that the State must prove every essential element of a crime beyond a reasonable doubt for a conviction to be upheld” and “note[d] that a conviction cannot stand if the jury was instructed in a manner that would relieve the State of this burden.” Id. at 579-80. Acknowledging that the instructions given were erroneous, Cronin “tuxnfed] to the question of whether the instructional error in these cases can be labeled harmless.” Id. at 580 (emphasis added). Thus, the Cronin court unmistakably applied harmless error analysis to the failure to properly instruct on an element of the crime.

¶39 In summary, the Washington Constitution’s jury trial right preserves the right as it existed in the territory at the time the constitution was adopted. At that time, it was the established practice in Washington to conduct harmless error analysis on instructional errors in criminal trials, including errors that resulted in the failure to submit an element of the crime to the jury. Our controlling precedent, as confirmed in Brown, dictates the same result. Therefore, I would hold that the failure to submit a sentencing factor to the jury is subject to harmless error analysis under Washington law.

B. The error in Recuenco’s case was harmless

¶40 Having established that harmless error analysis applies to the failure to submit a sentencing factor to the jury, I proceed to the question of whether the error in this particular case — failing to obtain a firearm finding by the jury — was harmless. I agree with the majority’s determination that a procedure existed by which a jury could have been asked to make a firearm finding. Majority at 437-39. However, I believe that beyond a reasonable doubt the error did not contribute to the verdict because a firearm— the .380 caliber semiautomatic handgun — was acknowledged to be the only deadly weapon involved in the case. I would therefore hold that the error in Recuenco’s case was harmless.

¶41 In Brown, we announced that “a constitutional error is harmless: ‘[if] it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” 147 Wn.2d at 341 (internal quotation marks omitted) (quoting Neder v. United States, 527 U.S. 1, 15, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)). It is undisputed that at Recuenco’s trial the only deadly weapon about which evidence was introduced was the firearm. Defense counsel acknowledged as much in the jury instructions conference following the close of evidence, saying “the deadly weapon in question is the firearm.” Verbatim Report of Proceedings (VRP) (Jan. 24, 2000) at 799. The court agreed, saying, “no other weapons are the subject of this trial, other than a firearm.” Id. at 810. The court then instructed the jury that “[f ]or the purposes of a special verdict the State must prove beyond a reasonable doubt that the defendant was armed with a deadly weapon. ... A pistol, revolver, or any other firearm is a deadly weapon whether loaded or unloaded.” Clerk’s Papers (CP) at 231 (Instruction 18). The jury returned a special verdict finding that Recuenco had been armed with a deadly weapon. CP at 237.

¶42 Based on this record, I can confidently determine that, although the jury did not explicitly find that Recuenco was armed with a firearm based on the evidence and the jury instruction, it would have so found if such a finding had been requested. As the Court of Appeals found, “any possible error was harmless beyond a reasonable doubt” because the only weapon mentioned at any stage of the proceedings was the firearm. State v. Recuenco, noted at 117 Wn. App. 1079, 2003 WL 21738927, at *5, 2003 Wash. App. LEXIS 1701. It is beyond a reasonable doubt that, in Recuenco’s case, the error of failing to submit the firearm finding to the jury did not contribute to the verdict obtained. Therefore, I would hold that the error was harmless.¹⁴

II. CHARGING ERROR

¶43 The majority’s opinion appears to at least be partially based on the premise that the trial court “exceeded its authority in imposing a sentence not authorized by the charges.” Majority at 442. I respectfully disagree. The information accused Recuenco of “being armed with a deadly weapon, to-wit: a handgun, under the authority of [former] RCW 9.94A.125 [(1983)] and [former] 9.94A.310 [(1999)].” CP at 159. This information, liberally construed, is sufficient to pass the test for postverdict challenges to information because it includes the necessary fact of being armed with a handgun.

¶44 The majority correctly lays out the law regarding the essential elements rule for preverdict challenges to charging documents. Majority at 434-35. However, the majority fails to account for the timing of Recuenco’s objection to the firearm enhancement. Recuenco contested the firearm enhancement at the sentencing hearing after the jury verdict on the basis that the prosecution failed to allege the use of a firearm and the jury did not return a firearm special verdict. A different, more liberal test applies to postverdict challenges to charging documents. State v. Kjorsvik, 117 Wn.2d 93, 102, 812 P.2d 86 (1991).

¶45 When an information is challenged prior to a verdict, “the language of the charging document is strictly construed to determine whether all elements are included, and the defendant need not show he was prejudiced by the defect.” State v. Tinker, 155 Wn.2d 219, 221, 118 P.3d 885 (2005). In contrast, “[cjharging documents which are not challenged until after the verdict will be more liberally construed in favor of validity than those challenged before or during trial.” Kjorsvik, 117 Wn.2d at 102. The more liberal two-prong test for postverdict challenges is “ ‘(1) do the necessary facts appear in any form, or by fair construction can they be found, in the charging document; and, if so, (2) can the defendant show that he or she was nonetheless actually prejudiced by the inartful language which caused a lack of notice?’ ” State v. Goodman, 150 Wn.2d 774, 788, 83 P.3d 410 (2004) (quoting Kjorsvik, 117 Wn.2d at 105-06). Under this test, the court may “fairly infer the apparent missing element from the charging document’s language.”¹⁵ Id.

f 46 Under this standard, I would find that the charging information, liberally construed, meets the first prong of the Kjorsvik test.¹⁶ 117 Wn.2d at 105. Recuenco was charged with “being armed with a deadly weapon, to-wit: a handgun, under the authority of [former] RCW 9.94A.125 and [former] 9.94A.310.” CP at 159. On its face, this charging document refers to a “handgun” and two statutes. Former RCW 9.94A.125 authorizes the use of a special verdict form for both firearm and deadly weapon enhancements. Former RCW 9.94A.310(3) and (4) provide statutory authority for both firearm and deadly weapon enhancements. For assault in the second degree, a class B felony, “if the offender . . . was armed with a firearm,” a three year mandatory firearm enhancement is added to the presumptive sentence. Former RCW 9.94A.310(3)(b). “[I]f the offender . . . was armed with a deadly weapon . . . other than a firearm” a one year mandatory deadly weapon enhancement is added. Former RCW 9.94A.310(4)(b). Thus, contrary to the majority’s implication, Recuenco was not specifically charged with a deadly weapon enhancement. Majority at 435 (asserting that “[t]he prosecutor chose to charge the lesser enhancement of ‘deadly weapon’ ”). Recuenco cannot argue that the information, although unartfully phrased, was insufficient because it provided notice of the necessary facts (being armed with a firearm).¹⁷

¶47 The second test is whether Recuenco can show that he was actually prejudiced by the unartful language. Kjorsvik, 117 Wn.2d at 106. In making this determination, the court “may look beyond the face of the charging document to determine if the accused actually received notice of the charges he or she must have been prepared to defend against.” Id. At trial, following the parties’ presentations of evidence, the court discussed jury instructions with counsel. Defense counsel acknowledged that “the deadly weapon in question is the firearm” but debated with the court over which deadly weapon definition should be given to the jury. VRP (Jan. 24, 2000) at 799. The court concluded that it would give “only the more simplified version, since no other weapons are the subject of this trial, other than a firearm.”¹⁸ Id. at 810. The court instructed the jury, “[t]he term 'deadly weapon’ includes any firearm, whether loaded or not.”¹⁹ CP at 222 (Instruction 9). It was undisputed at trial that the firearm was the only deadly weapon involved in the assault, and after the verdict, at the sentencing hearing, Recuenco’s counsel clearly acknowledged that “the allegation and the basis on which this case was tried was under the theory of firearm.” VRP (Feb. 24, 2000) at 902. Knowing that the case was tried on the theory of a firearm, Recuenco had actual notice that the State may seek a firearm enhancement. Furthermore, he has failed to show that he was prejudiced by the unartful language. Thus, I would hold that the information passes the Kjorsvik test.

III. CONCLUSION

¶48 I would hold that under Washington law the failure to submit a sentencing factor to the jury is subject to harmless error analysis. Furthermore, I would hold that, in Recuenco’s case, the entry of a firearm enhancement based on a deadly weapon finding was harmless. Finally, I would hold that the charging document sufficiently informed Recuenco that the State might seek a firearm sentence enhancement. Thus, I would remand to the trial court for it to ensure that the record reflects that Recuenco was properly sentenced to a 36-month firearm enhancement.

Chambers and J.M. Johnson, JJ., and Bridge, J. Pro Tem., concur with Fairhurst, J.

8 In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

9 In Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the United States Supreme Court clarified that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”

10 In State v. Recuenco, 154 Wn.2d 156, 162, 110 P.3d 188 (2005) (Recuenco I), we determined that the imposition of a firearm enhancement without an explicit firearm finding by the jury violates the Sixth Amendment. We also held that such an error could never be deemed harmless under the federal constitution. Id. at 164; see State v. Hughes, 154 Wn.2d 118, 148, 110 P.3d 192 (2005), overruled in part by Recuenco II, 548 U.S. 212. The United States Supreme Court reversed on the harmless error analysis issue and remanded this case for further proceedings. Recuenco II, 548 U.S. 212. As the majority notes, “[t]he Supreme Court remanded the case to us to consider whether the failure to submit a sentencing factor to the jury is subject to harmless error analysis under Washington law.” Majority at 433.

11 The Washington Constitution’s jury trial right is comprised of two provisions. Article I, section 21 provides that “[t]he right of trial by jury shall remain inviolate.” Article I, section 22 provides that “[i]n criminal prosecutions the accused shall have the right to .. . trial by an impartial jury.” “[T]he right to trial by jury which was kept ‘inviolate’ by our state constitution [is] more extensive than that which was protected by the federal constitution when it was adopted in 1789.” City of Pasco v. Mace, 98 Wn.2d 87, 99, 653 P.2d 618 (1982) (quoting Wash. Const. art. I, § 21). The state jury trial right “preserves the right as it existed at common law in the territory at the time of [our constitution’s] adoption.” Id. at 96; see also State ex rel. Mullen v. Doherty, 16 Wash. 382, 384-85, 47 P. 958 (1897).

12 I agree with the United States Supreme Court that, for the purposes of harmless error analysis, the failure to submit an element to the jury and the failure to submit a sentencing factor to the jury are analogous. Recuenco II, 548 U.S. at 222. Thus, because sentencing factors did not exist at the time the state constitution was adopted, I focus on whether harmless error analysis was applied to the analogous situation of an instructional error that results in the failure to submit an element of a crime to a jury.

13 Our decision in State v. Thomas, 150 Wn.2d 821, 83 P.3d 970 (2004), merits mention. Thomas addressed both the erroneous “to convict” instructions given in underlying criminal convictions and the finding by the court of aggravating circumstances supporting the death penalty. The Thomas court applied harmless error analysis to, and deemed harmless, the errors in the “to convict” instructions. Id. at 845-48. However, the court concluded that Apprendi and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), precluded applying harmless error analysis to the finding of aggravated circumstances by the court. Thomas, 150 Wn.2d at 849-50. This conclusion was corrected by Recuenco II.

14 While the majority states harmless error analysis does not apply, it is unclear from the opinion when the majority believes harmless error does not apply. For example, the majority’s opening paragraph seems to suggest that harmless error analysis does not apply to the failure to submit a sentencing factor to a jury. Majority at 431 (“harmless error analysis does not apply in these circumstances,” these circumstances being “where a sentencing factor... was not submitted to the jury”). But the majority also says Recuenco lacked any notice that he could be sentenced under the firearm enhancement. Id. at 440. The majority concludes, “it can never be harmless to sentence someone for a crime not charged, not sought at trial, and not found by a jury. In this situation, harmless error analysis does not apply.” Id. at 442. These statements provide no guidance for the future because it is unclear when, if ever, harmless error analysis applies.

15 This more liberal test was adopted to discourage “sandbagging,” referring to instances where a defendant “recogniz[es] a defective charging document and rais[es] the issue for the first time on appeal, when a challenge at the trial level would have resulted in an amended charge.” Goodman, 150 Wn.2d at 787 n.9 (citing Kjorsvik, 117 Wn.2d at 103 & n.19 (citing 2 Wayne R. LaFave & Jebold H. Israel, Criminal Procedure § 19.2, at 442 & n.36 (1984))). Under CrR 2.1(d), an information may be amended “at any time before verdict or finding if substantial rights of the defendant are not prejudiced.” “[T]he State may not amend a criminal charging document to charge a different crime after the State has rested its case unless the amended charge is a lesser degree of the same charge or a lesser included offense.” State v. Dallas, 126 Wn.2d 324, 327, 892 P.2d 1082 (1995). The State cannot amend a charging document after a jury has issued a verdict and the case is in the sentencing phase. Thus, although our previous cases have applied the more liberal test only to challenges brought on appeal, see, e.g., State v. Williams, 162 Wn.2d 177, 170 P.3d 30 (2007) (challenge first raised on appeal); Goodman, 150 Wn.2d 774 (challenge first raised on appeal); Kjorsvik, 117 Wn.2d 93 (challenge first raised on appeal), the underlying reasons for adopting a more liberal test for challenging an information applies equally to charges mounted during the sentencing phase because at that point the State is precluded from amending the information. Thus, the more liberal test applies to challenges to charging documents raised for the first time during a sentencing hearing.

16 I recognize that Recuenco did not have an opportunity to object to the information before the jury returned its verdict. Although application of the Kjorsvik test may seem harsh in this case, I believe that we must follow the analysis set forth in our prior case law. This test, which takes into account notice to the defendant and any resulting prejudice, adequately accounts for a defendant’s right of due process.

17 A charging document is not required to use the exact words of the statute defining a particular crime. Kjorsvik, 117 Wn.2d at 108. Instead, the question is whether “the words used would reasonably apprise cm accused of the elements of the crime charged. Words in a charging document are read as a whole, construed according to common sense, and include facts which are necessarily implied.” Id. at 109. A “handgun” is defined as “a firearm held and fired with one hand.” Webster’s Third New International Dictionary 1027 (2002) (emphasis added).

18 The court explained, “the WPIC Washington Practice: Washington Pattern Jury Instructions: Criminal] comments instruct that if the only weapon involved is a firearm that the simplified definition of deadly weapon should be used.” VRP (Jan. 24, 2000) at 810.

19 On the special verdict, the court instructed, “the State must prove beyond a reasonable doubt that the defendant was armed with a deadly weapon at the time of the commission of the crime of Assault In the Second Degree .... A pistol, revolver, or any other firearm is a deadly weapon whether loaded or unloaded.” CP at 231 (Instruction 18).