State of Washington v. Bisir Bilal Muhammad , 419 P.3d 419 ( 2018 )

FILED
JUNE 7, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 34233-6-III
Respondent, )
)
v. )
)
BISIR BILAL MUHAMMAD, ) PUBLISHED OPINION
)
Appellant. )
FEARING, J. — Appellant Bisir Muhammad challenges the validity of the stop of
his car, the search of his car, and the gathering of other evidence. He also challenges his
convictions for first degree murder and first degree rape on the basis of double jeopardy
and merger. We reject Muhammad’s challenges and affirm his convictions.
FACTS
This appeal lies from the callous murder of Ina Clare Richardson, a petite 102-
pound, 69-year-old woman. A jury convicted Bisir Muhammad of the homicide.
Because issues on appeal concern a motion to suppress evidence and trial evidence, we
alternate between facts presented at the suppression hearing and the trial.
We begin with some trial testimony. Victim Ina Richardson suffered from bipolar
disorder. During her manic phases, Richardson openly trusted others. On the night or
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State v. Muhammad
morning of November 6-7, 2014, someone beat, raped, and strangled Richardson to
death.
On November 7, a couple on a morning walk discovered Ina Richardson’s naked
corpse discarded along the side of an access road to a park in Clarkston. The unidentified
Richardson bore bruises, scrapes, and cuts throughout her body and swollen lips. Her
body bore defensive wounds indicating Richardson had struggled with her attacker. One
of Richardson’s pinkie nails was torn off. Richardson bled from her vagina and carried
bruises on her thighs and genitalia. Since Richardson’s feet remained remarkably clean,
law enforcement officers suspected her killer slayed her elsewhere and transported the
corpus to the dump site.
After the media broadcasted a description of the unidentified body, Ina
Richardson’s friend, Jeff Smith, told law enforcement that he suspected Richardson to be
the deceased person. Smith explained that he encountered Richardson at the Clarkston
Albertsons on the night of November 6 and that Richardson then sought a ride home from
the store. Smith could not help Richardson because he rode a bicycle. Richardson
unsuccessfully asked others to provide a ride.
Based on Jeff Smith’s tip, law enforcement procured and reviewed security
camera footage from an Albertsons grocery store, a Costco store, a Walmart store, and a
McDonald’s restaurant and spoke to workers at the business establishments. The
businesses surrounded one another. The various security cameras activated on movement
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and deactivated without movement. Law enforcement constructed a timeline of Ina
Richardson’s last night alive using the footage.
Walmart videotape showed a distinctive car leaving the nearby Quality Inn and
parking in the Walmart parking lot for approximately one-half an hour. Bisir Muhammad
worked that evening at the Quality Inn. The older, boxy, maroon American model car
exhibited a discolored front driver’s side rim, a chrome strip, and a light on the side
between the front and rear doors.
An Albertsons inside store camera depicted Ina Richardson shopping for one hour
and ten minutes. Video from the Albertsons outside security camera showed Richardson
leaving the store at 11:06 p.m. and walking southeast through the parking lot toward a
ubiquitous McDonald’s restaurant. The video shows the distinctive car parked in the
southeast end of the parking lot near the McDonald’s for a considerable time before
Richardson approached, with no one entering or emerging from the car. The camera
stopped recording as Richardson walked into the darkness.
The Albertsons video next displays the activation of the headlights of the
distinctive car. Seven minutes later the car traveled west through the parking lot. Video
from a nearby Costco surveillance camera then showed the same vehicle moving with
two people inside. The car drove on to an access road behind the Quality Inn and parked
in a service entrance area behind the hotel. Law enforcement later found a condom
wrapper in this secluded location. At 12:37 a.m., video showed the car leaving the
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vicinity. Richardson was never again seen alive.
An autopsy confirmed that someone sexually assaulted and strangled Ina
Richardson. The autopsy also verified injuries to Richardson’s scalp, face, lips, arms,
forearms, hands, thighs, knees, legs, right buttock, and left groin region. Finally, the
autopsy showed a large laceration in Richardson’s vaginal canal that evidenced a blunt
object being forced into the vagina and tearing tissue inside.
Swabs of Richardson’s vagina later yielded a small amount of deoxyribonucleic
acid (DNA) consistent with Bisir Muhammad’s DNA profile. Forensic scientist Anna
Wilson testified at trial that use of a condom would explain the limited amount of DNA
to test. DNA retrieved from under Richardson’s fingernails also matched Muhammad’s
DNA.
Because video last pictured Ina Richardson walking toward the distinctive maroon
car that soon left the parking lot, law enforcement studied the features of the video in
hopes of locating the motor vehicle. On November 10, three days after the discovery of
Richardson’s body, Clarkston Police Officer Darrin Boyd espied the car driving on a city
street. Officer Boyd read the vehicle’s license plate number and stopped the maroon car
to identify the driver and registered owner of the car. Both were Bisir Muhammad.
We now turn to the content of police records filed in response to the motion to
suppress. During the investigating stop, Officer Darrin Boyd told Bisir Muhammad of a
crime that occurred in the Albertsons parking lot on November 6 and of a car matching
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Muhammad’s car being in the lot. Officer Boyd asked Muhammad whether he parked in
the parking lot that night, and Muhammad said no. Muhammad commented that, to his
recollection, he drove directly home after finishing his work shift at the Quality Inn that
night. Muhammad asked Boyd what crime occurred, and Boyd responded by inquiring
of Muhammad if he read the paper. Muhammad answered no. Muhammad asked Boyd
if someone robbed McDonalds, and Boyd again answered in the negative. To our
knowledge, Boyd did not disclose the nature of the crime. Boyd gained Muhammad’s
phone number from Muhammad. Officer Boyd thanked Muhammad for his time,
apologized for any inconvenience, and released him.
After questioning Bisir Muhammad, Officer Darin Boyd informed others at the
Clarkston Police Department that he located the distinctive car depicted in the video
footage. Sergeant Richard Muszynski reviewed records and learned that Muhammad was
a registered sex offender. Muszynski also noted a prior rape conviction from Arkansas
for Muhammad under the alias “Billy Joe Dallas.” Clerk’s Papers at 414, 475.
Still on November 10, Sergeant Richard Muszynski directed Officer Darrin Boyd
to surveil Bisir Muhammad and Muhammad’s vehicle. Officer Boyd viewed Muhammad
retrieve a woman from his apartment residence, drive to Walmart, enter the store, and
return to his home. Muhammad parked the maroon car at the rear of the apartment. For
some unknown reason, Boyd abandoned his surveillance. When Boyd returned to the
Muhammad apartment building, Boyd noticed the car missing.
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Still on November 10, while Officer Darrin Boyd tailed Muhammad, Sergeant
Richard Muszynski procured a warrant to search the maroon car. Police could not
thereafter locate the car.
Officer Darrin Boyd grew concerned that Bisir Muhammad might flee, destroy
evidence, or endanger someone else’s safety. Officer Boyd asked police dispatch to
request AT&T, Muhammad’s cell phone carrier, to “ping” Muhammad’s phone. The
onomatopoeic term “ping” references the sending of a signal to identify the current
location of a cell phone. The phone carrier can discern the location through cell-site
locations, truncated as cell-site location (CSL) or cell-site location information (CSLI), or
by tracking satellite-based global positioning system data (GPS). The carrier detects a
general, not specified, area of the phone by CSL when the cell phone connects with a cell
tower in order to initiate or receive a call. GPS data reveals the exact location of the
phone by revealing the phone’s latitude and longitude coordinates regardless of a pending
call.
We now return to more trial testimony. On November 10, Bisir Muhammad’s cell
phone carrier used a CSL ping and discovered Muhammad’s presence in the vicinity of
several Lewiston, Idaho, orchards. Lewiston police officers accompanied Clarkston
officers in searching the region and locating Muhammad and his car. At the orchards,
Sergeant Richard Muszynski advised Muhammad that he held a search warrant for the
maroon car and asked if Muhammad would speak to officers at the Clarkston police
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station. Muhammad agreed, and officers seized his car pursuant to the warrant. While in
the orchards, officers also seized Muhammad’s cell phone without a warrant. After
traveling to Clarkston, officers advised Muhammad of his constitutional rights.
Muhammad signed a form that waived his rights and consented to speak with the officers.
During the beginning of the Clarkston Police Department interview, Bisir
Muhammad claimed again that he drove directly home after his shift washing dishes at
the Quality Inn on November 6. Muhammad also stated he would have been home by
10:25 p.m. Of course, law enforcement had already viewed videos that contradicted
Muhammad’s statement. When confronted that a video showed him parked in the
Walmart parking lot, Muhammad first responded that he did not remember going to
Walmart and had no reason to shop there. Muhammad next declared that he entered
Walmart to cash a paycheck, but the store refused to cash the check. Officers then
disclosed that the Walmart security video depicted Muhammad sitting in his car in the
parking lot for thirty minutes and never emerging from the car. Muhammad again
changed his story and asserted that he saw his friend Mike Delameter at a nearby Motel
6. When officers told Muhammad that a video pictured Ina Richardson walking toward
his car that night, he stated he visited with Delameter in the motel at that time. Officers
later approached Delameter, who denied seeing Muhammad that night.
During the November 10 interview at the Clarkston Police Department station,
Bisir Muhammad also told officers that he worked at the Clarkston Albertsons for two
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months, ending two weeks before November 6, 2014. The officers showed Muhammad a
picture of Ina Richardson and asked if he knew her from her shopping at Albertsons.
Muhammad recognized Richardson but maintained that he only spoke to her once in a
large group setting. Nevertheless, Albertsons security camera footage from inside the
store showed Muhammad and Richardson talking alone together on two occasions. In
one of the videos, taken one week before her rape and murder, Richardson appears to
rebuff an attempted kiss from Muhammad.
During the November 10 interview, Bisir Muhammad repeatedly denied
participation in Ina Richardson’s disappearance and death and refused to donate a DNA
sample. Muhammad finally exercised his right to counsel and left the interview.
On searching Bisir Muhammad’s maroon car, officers found, in the trunk, latex
gloves, personal lubricant, pornographic digital video disks, and a box of condoms
bearing the same lot number as the condom wrapper found in the secluded area where
Muhammad had parked for an hour after leaving the Albertsons parking lot. Albertsons
clerk Vickie Hollahan testified at trial that Muhammad informed her that he and his wife,
who is disabled, do not have sex. Law enforcement tested blood stains on the front
passenger seat and headrest and confirmed the fluid as Ina Richardson’s blood.
Officers also garnered a warrant to search Bisir Muhammad’s cell phone and to
gather Muhammad’s phone records from AT&T. The phone records undermine
Muhammad’s claim that he arrived home on November 6 by 10:25 p.m. The records
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confirm phone calls between Muhammad and his wife beginning at 12:17 a.m. on
November 7, 2014, an hour after his car left the Albertsons parking lot. AT&T CSL data
confirmed that Muhammad’s phone remained stationary during the time his car was
parked behind the Quality Inn. After 12:30 a.m., his phone used other cell phone towers,
indicating Muhammad traveled. At one time, Muhammad’s phone used a cell tower with
an unobstructed line of sight to the location where the walkers found Ina Richardson’s
body.
Police arrested Bisir Muhammad on November 13, 2014. The local newspaper
reported the arrest on the front page of the November 13 edition. At 4:50 a.m., on
November 14, Muhammad’s wife, Detra, called her insurance agent Vicki DeRoche.
Detra hysterically wept and told DeRoche that she worried Muhammad had acted
awfully. Detra explained that Muhammad came home late on the night of the murder
without explanation, that blood spotted his clothes, and that he discarded a used condom
while claiming the condom was a latex glove he used to help an injured coworker.
PROCEDURE
The State of Washington charged Bisir Muhammad with murder in the first degree
and rape in the first degree. The State pled first degree murder under the felony murder
provisions of RCW 9A.32.030(1)(c) based on Muhammad committing the homicide in
the furtherance of the rape.
Bisir Muhammad moved to suppress all physical evidence obtained during the law
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enforcement investigation of his case and identification and location information derived
from the warrantless ping. Muhammad also sought suppression of his prearrest
statements, including statements made to Officer Darrin Boyd during the car stop.
Muhammad argued that Officer Boyd conducted an unlawful stop and that law
enforcement improperly gained all search warrants based on information gathered during
that stop. Muhammad also argued that officers lacked authority to seize his car in Idaho
based on a Washington warrant and that the cell phone ping used to locate Muhammad
qualified as an unlawful search. The trial court found that, even if the ping constituted a
search, exigent circumstances justified immediate police action to direct the ping. The
trial court denied the suppression motion. The court issued an order denying suppression,
but entered no formal findings of fact.
After a trial, the jury found Bisir Muhammad guilty of both charges. The jury also
found the facts sufficient to support the presence of aggravating circumstances, because
of Ina Richardson’s vulnerability. The trial court imposed a term of 548 months’
confinement for the murder and an indeterminate sentence of 318 months’ confinement to
life for the rape. Due to the jury’s finding of aggravating circumstances, the court
ordered, as an exceptional sentence, that the two sentences be served consecutively
instead of concurrently. The total term amounts to at least 866 months. The trial court
entered findings and conclusions in support of the exceptional sentence that the rape and
murder do not merge because the two crimes had independent purposes and effects.
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LAW AND ANALYSIS
Vehicle Stop
Bisir Muhammad first contends that Officer Darrin Boyd’s stop of his maroon car
on November 10, 2014 violated the Fourth Amendment. Muhammad insists that officers
saw no criminal conduct in the security videos footage, and thus Boyd lacked grounds to
stop his car. By stopping the car, Boyd discovered the identity of Muhammad and his
ownership of the distinctive car, which information officers employed that day to procure
the search warrant for his car. Because of the illegality of the stop, Muhammad asks that
we reverse the trial court’s refusal to suppress all physical evidence and statements
procured during his questioning. According to Muhammad, all evidence gathered
resulted from the illegal stop.
Officer Darrin Boyd detained Bisir Muhammad’s car for questioning of the driver
rather than to arrest the driver. Thus, we characterize the stop as a Terry stop and address
the propriety of a Terry stop under the circumstances known to Boyd.
We review the traffic stop of the distinctive maroon car only under Washington
law, since state law affords an accused greater protection. As a general rule, warrantless
searches and seizures are per se unreasonable, in violation of article I, section 7 of the
Washington State Constitution. State v. Duncan, 146 Wash. 2d 166, 171, 43 P.3d 513
(2002). Washington recognizes at least six narrow exceptions to the warrant
requirement: consent, exigent circumstances, searches incident to a valid arrest, inventory
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searches, plain view searches, and Terry investigative stops. State v. Garvin, 166 Wash. 2d
242, 249, 207 P.3d 1266 (2009). The State bears the burden of demonstrating that a
warrantless seizure falls into a narrow exception to the rule. State v. Doughty, 170 Wash. 2d
57, 61, 239 P.3d 573 (2010).
Whether pretextual or not, a traffic stop constitutes a “seizure” for the purpose of
constitutional analysis. State v. Ladson, 138 Wash. 2d 343, 350, 979 P.2d 833 (1999).
Warrantless traffic stops pass constitutional challenge under article I, section 7 as
investigative stops, but only if based on a reasonable articulable suspicion of either
criminal activity or a traffic infraction, and only if reasonably limited in scope. State v.
Chacon Arreola, 176 Wash. 2d 284, 292-93, 290 P.3d 983 (2012); State v. Ladson, 138
Wash. 2d at 350. Likewise, police may conduct a Terry stop if police have a reasonable
suspicion of criminal activity. State v. Ibrahim, 164 Wash. App. 503, 508, 269 P.3d 292
(2011). Terry permits an officer to briefly detain, for limited questioning, a person whom
he or she reasonably suspects of criminal activity. State v. Broadnax, 98 Wash. 2d 289,
293-94, 654 P.2d 96 (1982), abrogated on other grounds by Minnesota v. Dickerson, 508
U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993).
When police have been unable to locate a person suspected of involvement in a
past crime, the ability to briefly stop that person, ask questions, or check identification in
the absence of probable cause promotes the strong government interest in solving crimes
and bringing offenders to justice. United States v. Hensley, 469 U.S. 221, 229, 105 S. Ct.
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675, 83 L. Ed. 2d 604 (1985). The minimally intrusive Terry stop, therefore, allows an
officer to make an intermediate response to a situation for which he or she lacks probable
cause to arrest but which calls for further investigation. State v. Kennedy, 107 Wash. 2d 1,
17, 726 P.2d 445 (1986).
Officer Darrin Boyd did not observe any criminal conduct either on the security
videos or while observing Bisir Muhammad and before stopping Muhammad.
Nevertheless, the totality of the circumstances gave rise to reasonable suspicion for
Officer Boyd to initiate an investigatory stop based on past criminal conduct occurring
off camera and known to Boyd. After studying video footage from the night of Ina
Richardson’s disappearance, Officer Boyd noted distinctive features of a vehicle toward
which Richardson fatefully walked. Three days later, Boyd witnessed the same
distinctive car driving in town. Based on the idiosyncratic character of the maroon car,
Officer Boyd possessed grounds to suspect its driver might hold knowledge concerning
the crimes or might have participated in the horrendous crimes against Ina Richardson.
Officer Darrin Boyd’s stop did not exceed the scope of a Terry search. Boyd
gained identification of Muhammad, asked him if he was present at the crime scene
nights earlier, asked him if he saw any suspicious activity that night, and allowed
Muhammad to proceed after answering the questions.
Bisir Muhammad contends the stop violated the state constitution because Officer
Darrin Boyd articulated no particularized facts supporting the possibility that Muhammad
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engaged in a crime at the time of the stop. But, similar to federal law, Washington law
does not limit Terry stops to crimes in progress. State v. Snapp, 174 Wash. 2d 177, 198,
275 P.3d 289 (2012). Washington courts have long described the suspicion required to
justify a Terry stop as “a substantial possibility that criminal conduct has occurred or is
about to occur.” State v. Snapp, 174 Wash. 2d at 198 (emphasis added) (quoting State v.
Johnson, 128 Wash. 2d 431, 454, 909 P.2d 293 (1996)).
Bisir Muhammad cites to State v. Quezadas-Gomez, 165 Wash. App. 593, 267 P.3d
1036 (2011) to support his assignment of error. Muhammad uses the decision’s analysis
to conclude that, unless probable cause to arrest exists prior to the investigatory vehicle
stop, the stop is unlawful. In Quezadas-Gomez, a law enforcement officer stopped the
car driven by Eduardo Quezadas-Gomez based on probable cause that Quezadas-Gomez
engaged in a drug transaction. This court held the stop to be legal because of the
probable cause. The decision did not address the lawfulness of a Terry stop.
We observe that other decisions involve the law enforcement officer gaining
reasonable suspicion that a person who previously engaged in, presently engages in, or is
about to engage in a crime. Officer Darrin Boyd held reasonable suspicion that the car
driven by Bisir Muhammad assisted in or functioned as the scene of a crime. On
November 10, Boyd could not identify the driver of the maroon car as the driver of the
car on the night of November 6. In this appeal, Muhammad does not argue the lack of
reasonable suspicion because the videotape did not capture his face or because Officer
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Boyd did not recognize Muhammad’s face while the latter drove his car. We note that
the government may temporarily seize property based on a reasonable and articulable
suspicion of criminal activity and the object’s connection to the activity. United States v.
Van Leeuwen, 397 U.S. 249, 90 S. Ct. 1029, 25 L. Ed. 2d 282 (1970); State v. Jackson,
82 Wash. App. 594, 605-06, 918 P.2d 945 (1996).
The State also contends that, even without information gained by Officer Darrin
Boyd during the traffic stop, law enforcement held probable cause to procure the search
warrant for the maroon car. We need not address this contention.
Cell Phone Ping
Bisir Muhammad next contends the Clarkston Police Department violated his
constitutional right to privacy when gathering from the phone carrier information as to
the current location of Muhammad’s cell phone. Thus, Muhammad seeks suppression of
all evidence and information gathered after the warrantless, surreptitious ping. We
decline to decide the important question of whether a warrantless employment of a cell
phone ping infringes on the phone owner’s privacy rights under article I, section 7 of the
Washington State Constitution. We instead affirm the trial court’s ruling that exigent
circumstances warranted the ping.
Exigent circumstances exist to excuse the warrant requirement if demand for
immediate investigatory action renders it impracticable for the police to obtain a warrant.
State v. Cardenas, 146 Wash. 2d 400, 405, 47 P.3d 127, 57 P.3d 1156 (2002). Exigent
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circumstances excuse the requirement to obtain a warrant prior to conducting a search
when obtaining a warrant is not practical because the delay inherent in securing a warrant
would compromise officer safety, facilitate escape, or permit the destruction of evidence.
State v. Smith, 165 Wash. 2d 511, 517, 199 P.3d 386 (2009). Five circumstances qualify as
exigent circumstances: (1) a hot pursuit, (2) a fleeing suspect, (3) danger to the arresting
officer or to the public, (4) the mobility of a vehicle, and (5) the mobility or destruction
of evidence. State v. Counts, 99 Wash. 2d 54, 60, 659 P.2d 1087 (1983). To determine
whether exigent circumstances exist, a court must look to the totality of the
circumstances. State v. Smith, 165 Wash. 2d at 518.
Six nonexclusive factors guide the analysis of whether exigent circumstances exist
under the law of search and seizure: (1) the gravity or violent nature of the offense with
which the suspect is to be charged, (2) whether the suspect is reasonably believed to be
armed, (3) whether there is reasonably trustworthy information that the suspect is guilty,
(4) there is strong reason to believe that the suspect is on the premises, (5) a likelihood
that the suspect will escape if not swiftly apprehended, and (6) the entry is made
peaceably. State v. Cardenas, 146 Wash. 2d at 406 (2002). While every factor need not be
present to establish exigency, in the aggregate the factors must establish the need to act
quickly. State v. Patterson, 112 Wash. 2d 731, 736, 774 P.2d 10 (1989). The mere
suspicion of flight or destruction of evidence does not satisfy a “particularity”
requirement of exigent circumstances. State v. Coyle, 95 Wash. 2d 1, 9, 621 P.2d 1256
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(1980).
All but one of the six exigent circumstances factors militate in favor of a finding
of exigent circumstances in this appeal. Although officers knew Ina Richardson
experienced a violent death, officers did not know Bisir Muhammad to bear arms.
Nevertheless, the nature of the crime rises to the zenith in terms of an individual victim.
Bisir Muhammad’s driving of and ownership of the distinctive car found in the video, his
employment near the site of the crime, and his previous encounters with Ina Richardson
that could have led Richardson to trust him engendered a reasonable belief of his being a
suspect. Muhammad already knew that law enforcement knew of his car’s proximity to
the crime and Muhammad would suspect that law enforcement considered him a suspect.
Therefore, a wise Muhammad would have fled the region, but surprisingly failed to do
so. Perhaps he thought he could hide from law enforcement in an orchard located in
another state. Law enforcement peacefully entered the orchard where Muhammad
reposed. Although such evidence could likely not be introduced at trial, officers also
knew Muhammad to be a registered sex offender with a previous rape conviction under
another name. Use of the ping would reasonably identify the location of Muhammad.
Bisir Muhammad promotes the lack of exigent circumstances due to the fact that
Ina Richardson’s murder occurred three days earlier. He also emphasizes that Officer
Darrin Boyd made no mention of a homicide when stopping Muhammad earlier that day.
Muhammad underscores that he had not fled by the time Boyd stopped him. Finally,
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Muhammad highlights the fact that Boyd abandoned his surveillance of Muhammad at
the latter’s apartment. Nevertheless, none of the exigent circumstances factors depend on
whether an officer earlier disclosed the nature of a crime to the suspect. While the crime
occurred three days before officers pinged Muhammad’s phone, the ping, as the trial
court noted, occurred only hours after Boyd encountered Muhammad and commented
that police knew of the crime and knew of the presence of the maroon car in the location
of the crime. Muhammad had not earlier fled, but he lacked knowledge that officers
knew of the connection of the maroon car to the crime. Officers could reasonably deduce
that the window of time for collection of evidence rapidly closed. Like Muhammad, we
question Boyd’s abandonment of the surveillance, but the abandonment could be the
result of another emergency or simple neglect. Neglectful conduct does not dissipate
exigent circumstances.
We question, as does Bisir Muhammad, the validity of the exigent circumstances
exception to the warrant requirement now that law enforcement may promptly gain a
search warrant through telephone calls to a judge at nearly any time of day.
Nevertheless, any abrogation or restriction of the exigent circumstances doctrine should
come from our state Supreme Court. We also cannot preclude the possibility that some
circumstances, such as immediate unavailability of a magistrate, prevented law
enforcement from quickly gaining a search warrant for the ping on November 10.
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Double Jeopardy
Bisir Muhammad assigns error for the first time on appeal to his convictions for
both first degree murder and first degree rape. By emphasizing that the State employed
the rape to qualify him for a first degree murder conviction, Muhammad contends the two
convictions violate double jeopardy principles.
Whether the two convictions violate double jeopardy principles poses as the most
difficult question in this appeal. Both parties raise excellent arguments in advance of
each’s respective position. Because of a common practice of charging an offender for
more than one crime based on one act or one course of conduct, the jurisprudence of
double jeopardy spawns numerous federal and state decisions. In turn, courts have split
double jeopardy principles into multipart tests, rules, and subrules that emphasize
different features of a prosecution or the multiple acts of the accused. For these reasons,
many decisions support the State’s arguments and numerous decisions corroborate Bisir
Muhammad’s contrary arguments, such that this court would stand on firm foundation in
ruling in favor of either party. We conclude, however, that convictions for first degree
rape and first degree murder, under this appeal’s circumstances, do not offend double
jeopardy because the murder did not necessarily follow from the rape and the murder
statutes and rape statutes serve diverse purposes.
Under the United States Constitution, no person shall “be subject for the same
offense to be twice put in jeopardy of life or limb.” U.S. CONST. amend. V. Under our
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state constitution: “No person shall be . . . twice put in jeopardy for the same offense.”
WASH. CONST. art. 1, § 9. These clauses protect defendants against “prosecution
oppression.” State v. Womac, 160 Wash. 2d 643, 650, 160 P.3d 40 (2007).
The double jeopardy clause of the Fifth Amendment encompasses three separate
constitutional protections: against a second prosecution for the same offense after
acquittal, against a second prosecution for the same offense after conviction, and against
multiple punishments for the same offense. State v. Gocken, 127 Wash. 2d 95, 100, 896
P.2d 1267 (1995). The federal and state double jeopardy provisions parallel one another
in thought, substance, and purpose and thus afford the same protections. In re Personal
Restraint of Davis, 142 Wash. 2d 165, 171, 12 P.3d 603 (2000).
An offender may raise a double jeopardy challenge for the first time on appeal.
State v. Jackman, 156 Wash. 2d 736, 746, 132 P.3d 136 (2006). The usual remedy for
violations of the prohibition of double jeopardy is to vacate the lesser offense. State v.
Hughes, 166 Wash. 2d 675, 686 n.13, 212 P.3d 558 (2009).
Despite the double jeopardy clause, the State may bring multiple charges arising
from the same criminal conduct in the same proceeding. State v. Michielli, 132 Wash. 2d
229, 238-39, 937 P.2d 587 (1997). Because the legislature holds the power to define
offenses, whether two offenses are separate offenses hinges on whether the legislature
intended them to be separate. In re Personal Restraint of Francis, 170 Wash. 2d 517, 523,
242 P.3d 866 (2010). Within constitutional constraints, the legislature may define crimes
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and punishments as it sees fit. State v. Smith, 177 Wash. 2d 533, 545, 303 P.3d 1047
(2013); State v. Calle, 125 Wash. 2d 769, 776, 888 P.2d 155 (1995).
In the context of an accused, such as Bisir Muhammad, charged with crimes under
two statutes, courts base any double jeopardy review on statutory analysis, not
constitutional law. One might question if a prosecution under two distinct statutes even
raises double jeopardy concerns, because courts defer to intent of the legislature. The
legislature, without constitutional restrictions, may punish the same act twice by creating
distinct crimes.
A trial court’s imposition of more than one punishment for a criminal act that
violates more than one criminal statute does not necessarily constitute multiple
punishments for a single offense for purposes of double jeopardy. State v. Calle, 125
Wash. 2d at 780 (1995). In order to determine if multiple convictions violate double
jeopardy, we ask whether the legislature intended to allow multiple punishments for
criminal conduct that violates more than one statute. State v. Louis, 155 Wash. 2d 563, 569,
120 P.3d 936 (2005). If the legislature intended that cumulative punishments can be
imposed for the crimes, double jeopardy is not offended. In re Personal Restraint of
Borrero, 161 Wash. 2d 532, 536, 167 P.3d 1106 (2007). Also, if the legislature does not
value a court’s decision prohibiting an accused from convictions on two crimes for the
same act or similar acts, the legislature could avoid the repercussions of the ruling by
increasing the punishment of one of the crimes. For this reason, the double jeopardy
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State v. Muhammad
clause constrains more the prosecution and the courts, rather than the legislature.
The analysis throughout a double jeopardy review focuses on the intent of the
legislature, but we start with determining whether the language of the criminal statutes
shows a desire to allow prosecution for the separate crimes. To determine whether the
legislature intended two separate offenses, we first consider any express or implicit
representations of legislative intent. In re Personal Restraint of Francis, 170 Wash. 2d at
523 (2010). We seek to determine if the legislature defined what it considered to be one
unit of prosecution. The unit of prosecution is the essential conduct that makes up the
core of the offense. In re Personal Restraint of Francis, 170 Wash. 2d at 528 (2010).
We quote the relevant sections of the first degree murder and first degree rape
statutes, the crimes of Bisir Muhammad’s convictions. RCW 9A.32.030 defines murder
in the first degree as:
(1) A person is guilty of murder in the first degree when:
(a) With a premeditated intent to cause the death of another person,
he or she causes the death of such person or of a third person; or
....
(c) He or she commits or attempts to commit the crime of either
(1) robbery in the first or second degree, (2) rape in the first or second
degree, (3) burglary in the first degree, (4) arson in the first or second
degree, or (5) kidnapping in the first or second degree, and in the course of
or in furtherance of such crime or in immediate flight therefrom, he or she,
or another participant, causes the death of a person other than one of the
participants. . . .
RCW 9A.32.030(1)(c), one of two felony murder statutes, allows the State to convict a
defendant of first degree murder without showing premeditated intent if the defendant
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State v. Muhammad
also commits one of five crimes, including rape. State v. Craig, 82 Wash. 2d 777, 781-82,
514 P.2d 151 (1973). First degree felony murder requires no specific criminal mental
state other than the one necessary for the predicate crime. State v. Frazier, 99 Wash. 2d
180, 192, 661 P.2d 126 (1983). RCW 9A.32.050(1)(b) contains another felony murder
provision when a defendant commits a felony, other than the five listed in RCW
9A.32.030(1)(c), during the course of the murder, but this statute classifies the crime as
second degree murder. Under the former statute, RCW 9A.32.030(1)(c), the State need
not prove a consummated rape, only an attempt to rape, to convict for first degree felony
murder.
RCW 9A.44.040 defines first degree rape as:
(1) A person is guilty of rape in the first degree when such person
engages in sexual intercourse with another person by forcible compulsion
where the perpetrator or an accessory:
(a) Uses or threatens to use a deadly weapon or what appears to be a
deadly weapon; or
(b) Kidnaps the victim; or
(c) Inflicts serious physical injury, including but not limited to
physical injury which renders the victim unconscious. . . .
One might conclude that the legislature wanted Bisir Muhammad convicted of two
crimes, since it created two distinct crimes, but such a conclusion would mean double
jeopardy could never bar charges under two statutes. One might also conclude that the
legislature only wanted Muhammad convicted of one crime since the first degree murder
statute incorporates the first degree rape statute. But we also observe that the State may
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State v. Muhammad
convict a defendant of first degree felony murder without convicting the defendant of
rape by convicting him of one of five other felonies. In the end, we discern no clear
evidence, in the statutory language, of the Washington State Legislature’s intent as to
whether the State may convict one or both first degree rape and first degree murder for
one course of conduct.
When, as here, the language of the statutes lies silent on this question, we next
apply the Blockburger “‘same evidence’” rule of statutory construction. State v.
Freeman, 153 Wash. 2d 765, 776, 108 P.3d 753 (2005). Since this principle constitutes a
rule of statutory construction, we again defer to legislative intent rather than enforcing
constitutional principles.
Under the United States Supreme Court’s decision in Blockburger v. United
States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932), when “the same act or
transaction constitutes a violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or one is whether each provision
requires proof of a fact which the other does not.” Unless each crime contains an element
not found in the other crime, double jeopardy precludes a conviction on both crimes.
Although courts purportedly apply the Blockburger test when they cannot discern
legislative intent, the test serves as just another means of discerning legislative intent.
State v. Calle, 125 Wash. 2d at 780 (1995).
Washington modifies the Blockburger test to read: “double jeopardy principles are
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No. 34233-6-III
State v. Muhammad
violated if the defendant is convicted of offenses that are identical in fact and in law.” In
re Personal Restraint of Borrero, 161 Wash. 2d at 537 (2007). Going further,
If the language of the criminal statutes under which the defendant
has been punished does not expressly disclose legislative intent with respect
to multiple punishments, the court then considers principles of statutory
construction to determine whether multiple punishments are authorized. . . .
If each offense contains an element not contained in the other, the offenses
are not the same; if each offense requires proof of a fact that the other does
not, the court presumes the offenses are not the same.
In re Personal Restraint of Borrero, 161 Wash. 2d at 536-37. Under this test, the facts of
the case gain the same prominence as the legal definitions of the respective crimes.
Under the law half of the same evidence test, a double jeopardy violation occurs
when the evidence required to support a conviction on one charge would suffice to
warrant a conviction on the other. State v. Freeman, 153 Wash. 2d at 772 (2005). But,
when each offense requires proof of an element not required in the other and when proof
of one offense does not necessarily prove the other, the offenses are not the same and
multiple convictions are permitted. State v. Louis, 155 Wash. 2d at 569 (2005).
In Bisir Muhammad’s prosecution, the first degree murder charge incorporated the
first degree rape charge. The State needed to prove all elements of first degree rape in
order to convict on first degree murder. Therefore, convicting Muhammad of first degree
rape did not require proof of an element not needed to convict of first degree murder. If
our analysis ended here, the two convictions breached double jeopardy restrictions. In
fact one of the decisions cited by Bisir Muhammad, State v. Jackman, 156 Wash. 2d 736
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State v. Muhammad
(2006), ends the double jeopardy analysis with the Blockburger test. Nevertheless, other
Washington Supreme Court decisions instruct us to continue with the analysis. We
review those decisions shortly.
The State argues that the proof between first degree felony murder and first degree
rape differs because an accused may commit felony murder by attempted rape. The State
need not establish a completed rape.
We agree with the State that, when one of the two crimes is an attempt crime, the
double jeopardy test requires further refinement. In re Personal Restraint of Borrero,
161 Wash. 2d at 537 (2007). This refinement results from the criminal attempt statute
containing the element that the person performs an act that constitutes “a substantial step
toward the commission of that crime.” RCW 9A.28.020(1). Only by examining the
actual facts constituting the “‘substantial step’” can the determination be made that the
defendant’s double jeopardy rights have been violated. In re Personal Restraint of
Borrero, 161 Wash. 2d at 537.
We discern no need to distinguish between a felony murder statute that permits a
conviction based on an attempted predicate crime, as opposed to a completed predicate
crime, for double jeopardy purposes in this appeal. We consider any such distinction
irrelevant when the State charges the defendant with a completed felony. The State
charged and convicted Bisir Muhammad with a consummated rape. We find no decision
that performs a refined analysis of the Blockburger test when felony murder could be
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State v. Muhammad
committed by an inchoate crime, but the accused committed a completed crime. The
State’s argument would require the refined scrutiny in every case involving Washington’s
first degree felony murder statute.
Washington’s version of the Blockburger test does not end a court’s analysis. The
mere fact that the State employs the same conduct to prove each crime is not dispositive.
State v. Freeman, 153 Wash. 2d at 777 (2005). Although the Blockburger test or same
evidence test probe indicators of legislative intent, the test does not always dispose of the
question of whether two offenses are the same. State v. Calle, 125 Wash. 2d at 780 (1995).
Washington courts rely on additional indicia of legislative intent. State v. Calle, 125
Wash. 2d at 780. In addition, the Washington Legislature holds the power to criminalize
every step leading to the greater crime and the crime itself. Whalen v. United States, 445
U.S. 684, 688-89, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980); State v. Freeman, 153
Wash. 2d at 771 (2005). So we continue with our statutory construction, not the application
of constitutional tenets.
In the last of many steps behind double jeopardy scrutiny, we still examine the
respective criminal statutes’ language and their history to resolve whether the legislature
intended to punish for separate crimes, even though committed by a single act. State v.
Calle, 125 Wash. 2d at 780. The differing purposes served by the respective statutes and
their location in different chapters of the criminal code comprise evidence in part of the
legislature’s intent to punish the two acts as separate offenses. State v. Calle, 125 Wash. 2d
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at 780. At this stage of the double jeopardy review, we may return to other evidence of
legislative intent, including the statutes’ historical development, legislative history,
location in the criminal code, or the differing purposes for which they were enacted.
State v. Freeman, 153 Wash. 2d at 777 (2005). We may discern legislative intent from the
legislative history, the structure of the statutes, the fact the two statutes seek to eliminate
different evils, or any other source of legislative intent. Ball v. United States, 470 U.S.
856, 862-64, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985); State v. Calle, 125 Wash. 2d at 777-
78. If each criminal statute serves an independent purpose or effect, the State may punish
violations of the two statutes as separate offenses. State v. Johnson, 92 Wash. 2d 671, 680,
600 P.2d 1249 (1979). The process is recursive, returning to the legislature’s intent again
and again. State v. Freeman, 153 Wash. 2d at 777. In State v. Calle, the Washington State
Supreme Court upheld convictions of rape and incest on the rationales that the two crimes
lay in distinct chapters within the criminal code and each crime served to protect different
societal interests, despite the same act forming the basis for each crime.
The statutes prohibiting murder and rape serve discrete goals. Chapter 9A.36
RCW, the code chapter creating homicide crimes, serves the public policy favoring the
protection of human life. Gardner v. Loomis Armored Inc., 128 Wash. 2d 931, 944, 913
P.2d 377 (1996). One of society’s most basic tasks is that of protecting the lives of its
citizens and one of the most basic ways in which it achieves the task is through criminal
laws against murder. Gregg v. Georgia, 428 U.S. 153, 226, 96 S. Ct. 2909, 49 L. Ed. 2d
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859 (1976) (White, J., concurring).
Chapter 9A.44 RCW, the chapter creating sex crimes, primarily seeks to prohibit
acts of unlawful sexual intercourse, with punishment dependent on the accompanying
circumstances. State v. Calle, 125 Wash. 2d at 781 (1995). The focus of the crime is not
simply sexual violation, but also the fear, degradation and physical injury accompanying
that act. Helen Glenn Tutt, Comment, Washington’s Attempt To View Sexual Assault as
More Than a “Violation” of the Moral Woman-The Revision of the Rape Laws, 11 GONZ.
L. REV. 145, 155 (1975). Thus, the two criminal statutes violated by Bisir Muhammad
serve distinct purposes that command two convictions.
We observe that Bisir Muhammad’s rape of Ina Clare Richardson raised his crime
from second degree murder to first degree murder. Thus, the rape formed an essential
element of the murder charge. In State v. Freeman, 153 Wash. 2d 765 (2005), the state high
court noted that convictions for the crimes of first degree robbery and second degree
assault generally could not stand because the assault raised the robbery from second
degree to first degree. Nevertheless, under the facts of the appeal, the Supreme Court
declined to strike the predicate crime because the victim of the crime suffered injuries
from the assault distinct from any injury suffered by the robbery. Ina Clare Richardson
suffered injuries from the rape distinct from the mortal harm incurring from the murder.
Bisir Muhammad maintains that Harris v. Oklahoma, 433 U.S. 682, 97 S. Ct.
2912, 53 L. Ed. 2d 1054 (1977) supports his position that felony murder cannot be
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No. 34233-6-III
State v. Muhammad
punished in conjunction with the predicate felony that forms the basis of the murder
charge. We disagree. In Harris, the United States Supreme Court held the Fifth
Amendment prohibited a separate trial and conviction for robbery, a predicate of felony
murder, after the State convicted the accused of the murder. Harris does not address, let
alone prohibit, trying and convicting a defendant of both felony murder and the predicate
felony during the same trial. The Harris Court relied on the rule of law that, when
conviction of a greater crime cannot be had without conviction of the lesser crime, double
jeopardy bars prosecution for the lesser crime after conviction of the greater one. The
State charged Bisir Muhammad with the predicate crime in the same prosecution as the
felony murder.
A United States Supreme Court decision with closer facts is Whalen v. United
States, 445 U.S. 684 (1980). The District of Columbia convicted Thomas Whalen of rape
and killing the same victim during the perpetration of the rape. Rape was one of six
predicate crimes that raised the murder to first degree murder. The United States
Congress adopted the criminal code for the district, such that the United States Supreme
Court sat more as the highest level of a state court system than as the Supreme Court of a
nation. The District of Columbia Court of Appeals rejected Whalen’s argument that the
rape conviction merged, based on the double jeopardy clause, with the first degree
murder conviction. The Supreme Court disagreed based on a District of Columbia statute
enacted by Congress that precluded multiple punishments for two offenses arising out of
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State v. Muhammad
the same criminal transaction unless each offense required proof of a fact that the other
did not. The Supreme Court reasoned that the statute ended the double jeopardy analysis
with the Blockburger test, such that the Court refused to analyze further the legislative
intent of Congress. The Court vacated the rape conviction since a conviction for killing
in the course of the rape could not be had without proving all the elements of the offense
of rape. We decline to follow Whalen since Washington has no similar statute.
Merger
When the accused challenges two convictions on double jeopardy grounds, the
accused typically also challenges the convictions on the related doctrine of merger. Bisir
Muhammad follows this practice.
Courts sometimes merge the merger doctrine with double jeopardy. Some courts
often write that, because of double jeopardy constraints, the two crimes “merge.” State v.
Johnson, 92 Wash. 2d at 681 (1979). Nevertheless, the law considers the two doctrines
distinct despite both relying on legislative intent.
The merger doctrine serves as another tool of statutory construction designed to
prevent the pyramiding of charges on a criminal defendant. State v. Saunders, 120 Wn.
App. 800, 820, 86 P.3d 232 (2004). Similar to the double jeopardy analysis, courts
employ the doctrine to resolve whether the legislature intends multiple punishments to
apply to particular offenses. State v. Saunders, 120 Wash. App. at 820. Merger applies
when proof of one crime proscribed in one section of the criminal code elevates a second
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State v. Muhammad
crime found in another section to a higher degree. State v. Saunders, 120 Wash. App. at
820. Generally a predicate offense will merge into the second crime, and the court may
not punish the predicate crime separately. State v. Saunders, 120 Wash. App. at 821.
An exception to the merger doctrine lies when the predicate and charged crimes do
not intertwine. State v. Saunders, 120 Wash. App. at 821. Even if two convictions appear
to merge on an abstract level, they may be punished separately if the defendant’s conduct
forming one crime demonstrates an independent purpose or effect from the second crime.
State v. Kier, 164 Wash. 2d 798, 804, 194 P.3d 212 (2008). The merger doctrine applies
when the legislature clearly indicates that it did not intend to impose multiple
punishments for a single act that violates several statutory provisions. State v. Vladovic,
99 Wash. 2d 413, 420-21, 662 P.2d 853 (1983).
The merger doctrine applies when one crime is incidental to the commission of the
second crime. State v. Harris, 167 Wash. App. 340, 355, 272 P.3d 299 (2012). To the
contrary, if the predicate crime injures the person or property of the victim or others in a
separate and distinct manner from the crime for which it serves as an element, the crimes
do not merge. State v. Harris, 167 Wash. App. at 355.
The merger doctrine applies at the time of sentencing and its purpose is to correct
violations of the prohibition of double jeopardy. State v. Parmelee, 108 Wash. App. 702,
711, 32 P.3d 1029 (2001). As such, the doctrine aims at providing remedies. State v.
Chesnokov, 175 Wash. App. 345, 355, 305 P.3d 1103 (2013).
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Bisir Muhammad astutely relies on State v. Fagundes, 26 Wash. App. 477, 614 P.2d
198 (1980), in which this court merged the predicate felonies of first degree rape and first
degree kidnapping into a felony murder conviction. We acknowledged the underlying
felony served additional purposes apart from simply elevating the degree of seriousness
for the murder charge, but nonetheless merged the convictions since proof of the
underlying felony was necessary to prove the felony murder.
Bisir Muhammad also relies on State v. Williams, 131 Wash. App. 488, 128 P.3d 98
(2006), where a predicate robbery charge merged with felony murder because the murder
occurred in the immediate flight from the robbery and served to help facilitate an escape.
Nevertheless, this court clarified that the robbery would not merge if it was “merely
incidental” to the homicide.
State v. Fagundes and State v. Williams support Bisir Muhammad’s request for
merger. Nevertheless, we follow the teachings of State v. Vladovic, 99 Wash. 2d at 421
(1983) instead. Vladovic followed Fagundes by three years. In Vladovic, our high court
declared: “if the offenses committed in a particular case have independent purposes or
effects, they may be punished separately.” 99 Wash. 2d at 421.
We also find other Washington decisions that support rejection of merger in Bisir
Muhammad’s appeal. In State v. Saunders, 120 Wash. App. 800 (2004), this court held that
convictions for felony murder and first degree rape did not merge when the murder was
separate and distinct from the rape. Ray Saunders and Leanna Williams restrained
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State v. Muhammad
Marcia Grissett with handcuffs and leg shackles. Saunders attempted to force Grissett to
perform oral sex on him, and Williams anally raped Grissett with a television antenna.
Ultimately, Saunders stabbed Grissett in the chest with a knife and either Saunders or
Williams strangled Grissett, who died from the stabbing and the simultaneous asphyxia
from strangulation. On appeal, similar to Bisir Muhammad, Saunders argued that the two
convictions should merge.
To determine whether Ray Saunders’ two convictions sufficiently intertwined for
merger to apply, this court considered whether the crimes occurred almost
contemporaneously in time and place, whether the sole purpose of one crime facilitated
the other, and whether the victim suffered any injury independent of or greater than the
injury associated with the predicate crime. Even though the acts occurred at the same
time and place, the court did not merge the two convictions. The court reasoned that
Marcia Grissett sustained injuries independent of and exceeding that necessary to commit
the murder and found the rape did not facilitate the murder.
In State v. Peyton, 29 Wash. App. 701, 630 P.2d 1362 (1981), William Peyton and
his associates robbed a bank. After fleeing the bank in one vehicle, the robbers drove the
vehicle to a nearby location, abandoned the vehicle, and entered and continued the flight
in a second vehicle. The group eventually abandoned the second vehicle and ran across
fields, where they engaged in a shooting match with pursuing officers. A bullet fired by
Peyton killed one officer. The court held that the underlying robbery that served as the
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predicate crime for first degree murder did not merge in the murder conviction because
the two crimes did not intertwine.
Bisir Muhammad's rape of Ina Clare Richardson was not integral to her killing.
Although Richardson's murder silenced her from reporting the rape, the murder did not
effectuate or coincide with the rape. Following the reasoning of Vladovic, Peyton, and
Saunders, the two crimes had independent purposes and effects. Ina Richardson suffered
many injuries from her rape including a laceration in her vaginal canal that caused
bleeding, and injuries to her thighs, knees, legs, right buttock and left groin region. These
injuries differed from the injuries to her neck and eyes that resulted from being strangled
to death. As a result, the two crimes may be punished separately. We refuse to merge
the first degree murder with the first degree rape conviction.
CONCLUSIONS
We affirm Bisir Muhammad's convictions for first degree murder and first degree
rape. Because the State does not seek an award of appellate costs, we deny an award of
costs to the prevailing party.
WE CONCUR:
1
Siddoway, J.
35