State Of Washington v. Scott E. Collins ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 71058-3-1
Respondent, DIVISION ONE
v.
UNPUBLISHED OPINION
SCOTT EUGENE COLLINS,
Appellant. FILED: June 23, 2014
Schindler, J. — Scott Eugene Collins seeks reversal of multiple jury convictions
arguing double jeopardy barred retrial following a mistrial. In the alternative, Collins
asserts the eight convictions for possession of stolen property violate double jeopardy
and imposition of a consecutive sentence under the "Hard Time for Armed Crime Act"
(HTACA), Laws OF 1995, chapter 129, section 21 (Initiative Measure No. 159), for the
three counts of possession of a stolen firearm and the three counts of unlawful
possession of a firearm violates the prohibition against cruel punishment. We hold the
retrial did not violate double jeopardy and the court did not err by imposing the
consecutive sentences under the HTACA. We accept the State's concession that the
eight convictions for possession of stolen property violate double jeopardy and all but
one of the convictions must be vacated. Accordingly, we affirm in part, reverse in part,
and remand for resentencing.
No. 71058-3-1/2
FACTS
Steven Brent worked as a corrections officer at the Cowlitz County Jail. On
December 5, 2009, Brent got off work at 4:00 p.m. When he arrived home, Brent "knew
something was wrong" because "my dog came in from around the outside of my garage
and my dog is an inside dog," and there was a "two-inch skid mark the full length of the
driveway." Brent said the front door was "kicked in, the doorframe was busted," and
"[c]lothes, anything that was on the dressers were just thrown and a random pattern[.]
Every room in the house was ransacked." A number of his belongings were stolen,
including his 12-guage shotgun and a .22 caliber pistol revolver, a mountain bike,
televisions, "computers, wood splitter, chainsaws, boat, trailer, boat loaders, [and]
fishing gear." Brent estimated the value of the stolen property was between $12,000
and $15,000. Brent called 911 to report the burglary.
Cowlitz County Sherriff Deputy Danny O'Neill responded to the 911 call. Deputy
O'Neill suggested Brent find out whether his next-door neighbor noticed "unusual
vehicles ... in the driveway" and check Craigslist. Deputy O'Neill told Brent that he
"suspected his property went to 1306 Ross Street in Kelso."
The next day, Brent and a friend "went to the pawnshops first then we started
driving around town" looking for the stolen property before going to 1306 Ross Street.
When they went to the house located at 1306 Ross Street, Brent saw his stolen
mountain bike and his fishing net in the alleyway. Brent called the police. The police
verified that Scott Eugene Collins lived at 1306 Ross Street and obtained a warrant to
search the house. When the police executed the search warrant, they found property
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that had been stolen from Brent and a number of other victims, including a semi
automatic pistol and a Dodge Durango. The police also found marijuana.
The State charged Collins with burglary in the first degree while armed with a
firearm, residential burglary, three counts of unlawful possession of a firearm in the first
degree, three counts of possession of a stolen firearm, eight counts of possession of
stolen property, possession of a stolen vehicle, identity theft in the second degree, and
possession of 40 grams or less of marijuana.
Collins filed a motion to dismiss the burglary charges under State v. Knapstad,
107 Wash. 2d 346, 729 P.2d 48 (1986), and filed a motion to sever the three counts of
unlawful possession of a firearm. The court granted the motion to sever. The court
reserved ruling on the motion to dismiss the burglary charges.
At the beginning of trial, the defense moved to exclude any reference to "the
felony possession of a firearm charges." The prosecutor agreed to instruct the
witnesses "not to mention the fact that Mr. Collins is a convicted felon or that he was
investigated for the unlawful possession of firearms in the first degree."
Following jury selection, the court granted the defense motion to dismiss the
burglary charges. The defense attorney asked the State to "please advise your
witnesses carefully how to handle the - you know, the issues regarding the burglary
discussions or anything." The prosecutor argued the witnesses should be allowed to
testify about the burglaries:
The fact that they were burglarized is self-evident from the fact that. . .
they lost their stuff, so ifthey can't say, we were burgled, how did their
stuff get taken? . . . [Y]hey need to testify to the fact that it's stolen.
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The court agreed, "I don't see - that doesn't prejudice your Client because he's not
charged with burglary."
The court instructed the jury not to consider the burglary charges:
When we first started this trial a couple of days ago, I read to you a
number of charges that you were going to be considering in this case, and
that list is now changed. You - you were originally -- you will not be
presented information related to the five counts of alleged burglary, and
nor will you be asked to consider those charges in your deliberations.
The State called Brent as the first witness to testify at trial. The State then called
Deputy O'Neill. During direct examination, the prosecutor asked Deputy O'Neill whether
he talked "to Mr. Brent about what he might do to be proactive about the burglary" and,
if so, what he told Brent. In response, Deputy O'Neill testified, "I told [Brent] I had a
suspect that I felt was probably involved in several of the north-end burglaries that was
living-." The defense objected.
Outside the presence of the jury, the defense attorney moved for a mistrial. The
attorney argued Deputy O'Neill violated the motion in limine order by suggesting Collins
was a prior suspect in "a rash of other burglaries" and the testimony was "extremely
prejudicial."
The prosecutor argued there was "no bad faith in asking . . . that question" and
pointed to the "very specific testimony in . . . Deputy O'Neill's report that relates to that
question." The prosecutor argued, in pertinent part:
[T]he question was framed in such a way, what did you tell him to do? I
was not attempting to elicit anything about that, . . . Deputy O'Neill had
directed Mr. Brent to look on Craigslist for his property and then to go sit
outside 1306 Kelso. And so that explains why the victim, Mr. Brent, and
[his friend] went and sat outside 1306, North Kelso. They saw the - they
saw the bicycle there. That - that's the context for that.
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The court granted the motion for a mistrial. The court ruled, in pertinent part:
I'm concerned about the statement and .. . what I can do about that with
the jury. I mean, I think that's an unfortunate circumstance, but I don't
know that, given that the issue's raised and a mistrial's been requested, I
think that probably, much to my dissatisfaction, I don't really have any
opportunity - any ability to not do that. We had specific motion in limine
on that, which was granted. I'm not going to make any other rulings with
regards to dismissal. Ifthat is something that Counsel wishes to bring in a
formal motion, which probably needs to be set for some sort of - a little
more extended than I can do at this time. I'm not going to dismiss the
case. So the case will -- will remain pending and will need to be
reassigned.
Following the decision to grant a mistrial, Collins filed a "Motion to Dismiss Due
to Prosecutorial Mismanagement/Misconduct" under CrR 8.3(b). Collins argued that
because the prosecutor "admittedly failed to properly instruct its witnesses as instructed
by the court, . . . such conduct is recklessly indifferent to both the court ruling and the
defendant's rights, and impermissibly provoked a mistrial and requires dismissal of this
case with prejudice."
Defense counsel filed a declaration in support of the motion to dismiss. The
defense attorney states that "Deputy O'Neill's response was verbatim from his report"
and the defense was "forced to called [sic] for a mistrial." The attorney states that
"[a]fterwards, [the] Prosecutor. . . apologized, and said he should have given better
instruction to the deputy." The attorney also states that "more information is needed to
assist the court to determine whether the prosecution actually instructed their witnesses
regarding the defense's motion in limine as ordered by the court."1
The State filed a response. In his declaration, the prosecutor states that he
neither intentionally nor recklessly attempted to cause the mistrial, nor did he intend to
elicit information that would be in violation of the motions in limine. The prosecutor
1 Emphasis in original.
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states that he told Deputy O'Neill about the rulings in limine and instructed Deputy
O'Neill "not to discuss the burglaries that had been charged in this case and that they
had been dismissed." The prosecutor refers to Brent's testimony that he went "to pawn
shops with his friend looking for his stolen property and that he had ultimately ended up
outside 1306 Ross where he saw his bicycle and fishing net." The prosecutor also
states that he did not prepare a "script of questions" for the direct examination of Deputy
O'Neill but, "instead[,] I used a copy of his police report from the incident." The
prosecutor explained that "[t]he question I asked was directly based on the following
paragraph from the police report (2nd paragraph of attached report)" and provided a
copy of the police report. Deputy O'Neill's police report states, in pertinent part:
I explained to the victim in this case things he could do to help me with the
case. I asked if he would check Craigs list [sic] for his boat, I asked him to
check with his next door neighbor for unusual vehicles seen in the
driveway. I told him I suspected his property went to 1306 Ross Street in
Kelso. I told him he could drive by if in the area and report anything he
thought was his.
The court rejected the argument of mismanagement or intentional misconduct by the
prosecutor and denied the motion to dismiss under CrR 8.3(b).
The trial on the three counts of unlawful possession of a firearm in the first
degree began on February 6, 2012. Collins stipulated to a bench trial. Collins also
stipulated that he had previously been convicted of second degree burglary. The court
found Collins guilty of three counts of unlawful possession of a firearm in the first
degree.
The retrial on the other counts began on February 21. The jury convicted Collins
of possession of a stolen Dodge Durango; two counts of possession of stolen property
in the second degree belonging to Brent and Brian MacArthur; six counts of possession
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No. 71058-3-1/7
of stolen property in the third degree belonging to Sabrina Little, Douglas Johnson,
Kenneth McDermott, Christopher Farmer, Gary Grasser, and Tiffany Ostreim; three
counts of possession of a stolen firearm; and possession of 40 grams or less of
marijuana.
In the sentencing memorandum, the State argued RCW 9.41.040(6) and RCW
9.94A.589(1)(c) of the Hard Time for Armed Crime Act (HTACA) required imposition of
a consecutive sentence for the three counts of possession of a stolen firearm and the
three counts of unlawful possession of a firearm to run concurrently with the standard-
range sentence on the other convictions.
In the defense sentencing memorandum, the defense asserted the HTACA
permitted an exceptional sentence downward where the presumptive sentence would
be " 'clearly excessive'" under RCW 9.94A.535(1)(g) and "grossly disproportionate to
the gravity of the offense." The defense argued the court should impose a low-end
standard-range sentence between 72 and 87 months.
At sentencing, the court rejected the request for an exceptional sentence
downward. The court ruled that the HTACA required imposition of a consecutive
sentence for each of the six convictions for possession of a stolen firearm and unlawful
possession of a firearm. With an offender score of 23, the standard-range for
possession of a stolen firearm was 72 to 96 months and was 87 to 116 months for
unlawful possession of a firearm. The court imposed a consecutive 72-month sentence
for each of the three counts of possession of a stolen firearm and a consecutive 88-
month sentence for each of the three counts of unlawful possession of a firearm,
totaling 480 months. The court imposed a concurrent standard-range sentence for
No. 71058-3-1/8
possession of stolen property, possession of a stolen motor vehicle, and possession of
marijuana. Collins appeals.
ANALYSIS
Retrial
Collins contends that conducting a retrial following the decision to grant a mistrial
violated his constitutional right against double jeopardy. The Fifth Amendment to the
United States Constitution and article I, section 9 of the Washington State Constitution
prevent the State from putting a person in jeopardy twice for the same crime. The Fifth
Amendment states, in pertinent part, "nor shall any person be subject for the same
offense to be twice put in jeopardy of life or limb." U.S. Const, amend. V. The
Washington Constitution also guarantees that "[n]o person shall... be twice put in
jeopardy for the same offense." Wash. Const, art. I, § 9. Whether the retrial violates
double jeopardy is a question of law we review de novo. State v. Jackman, 156 Wn.2d
736,746, 132 P.3d 136 (2006).
As a general rule, double jeopardy does not bar retrial after a defendant moves
for a mistrial. Oregon v. Kennedy. 456 U.S. 667, 672-73, 102 S. Ct. 2083, 72 L. Ed. 2d
416 (1982). However, there is a narrow exception to the general rule. Where "the
governmental misconduct in question is intended to 'goad' the defendant into moving for
a mistrial," a defendant may "raise the bar of double jeopardy to a second trial after
having succeeded in aborting the first on his own motion." Kennedy, 456 U.S. at 676.
In Kennedy, the prosecutor asked an expert witness whether the reason he had
never done business with the defendant was " 'because he is a crook.'" Kennedy, 456
U.S. at 669. The United States Supreme Court held that the double jeopardy clause of
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No. 71058-3-1/9
the Fifth Amendment did not bar retrial because the prosecutor did not intentionally
cause a mistrial. Kennedy. 456 U.S. at 679.
On remand, the Oregon Supreme Court adopted a different test under the
Oregon Constitution:
[A] retrial is barred by ... the Oregon Constitution when improper official
conduct is so prejudicial to the defendant that it cannot be cured by means
short of a mistrial, and if the official knows that the conduct is improper
and prejudicial and either intends or is indifferent to the resulting mistrial or
reversal. When this occurs, it is clear that the burden of a second trial is
not attributable to the defendant's preference for a new trial over
completing the trial infected by an error. Rather, it results from the state's
readiness, though perhaps not calculated intent, to force the defendant to
such a choice.
State v. Kennedy. 295 Or. 260, 276, 666 P.2d 1316(1983). However, because the trial
court found that the prosecutor did not act in "bad faith," the Oregon Supreme Court
concluded that the "criteria for imposing a constitutional bar against a second trial were
not met." Kennedy. 295 Or. at 277-78. The court also stated that even intentional
prosecutorial misconduct does not bar a mistrial if it "does not reflect a willingness to
risk placing the defendant repeatedly in jeopardy for the same offense." Kennedy. 295
Or. at 277. Further, the court stressed that the difference between the standards for
double jeopardy under the federal and Oregon constitutions "actually is quite narrow."
Kennedy. 295 Or. at 272.
The sole issue is whether. . . there is room for a double jeopardy bar
beyond the case of an intentionally provoked mistrial when a prosecutor
"harasses" the defendant with what the prosecutor knows to be prejudicial
error. [A] guarantee against "harassment" implies a requirement of some
conscious choice of prejudicial action before the guarantee bars correction
of the error by a new trial. Negligent error, "gross" or otherwise, is not
enough.
Kennedy. 295 Or. at 272-73.
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No. 71058-3-1/10
Collins urges us to adopt Oregon's interpretation of its textually similar double
jeopardy clause. Collins does not claim prosecutorial misconduct barred the retrial.
Instead, Collins argues the "intentional misconduct on the part of Deputy O'Neill" barred
the retrial and violated double jeopardy. State v. Hopson. 113 Wash. 2d 273, 778 P.2d
1014 (1989), controls. In Hopson. the court squarely considered and rejected the same
argument.
'n Hopson. a state fire investigator referred to the defendant's " 'booking
photograph'" after he was told not to mention criminal history. Hopson. 113 Wash. 2d at
275-76. After the second reference to the booking photograph, the court granted the
defense motion for a mistrial. Hopson. 113 Wash. 2d at 276.
On appeal, the defendant urged the court to adopt the Oregon standard and hold
that the retrial violated double jeopardy because the witness either intended to cause or
was indifferent to the resulting mistrial and knew his conduct was prejudicial. Hopson.
113 Wash. 2d at 277-78, 280. The Washington Supreme Court rejected the attempt to
"extend the Oregon application" to the conduct of the state fire investigator witness,
noting that the Oregon court had never applied its test to the conduct of a witness.
Hopson. 113 Wash. 2d at 282. The court emphasized the "narrow difference" between the
two tests, noting that both "require a 'rare and compelling' set of facts." Hopson. 113
Wash. 2d at 283. The court also concluded that where the witness's testimony was
inadvertent or even grossly negligent, the testimony "would not meet the Oregon
standard to bar retrial even ifthe bar applied to witnesses." Hopson. 113 Wash. 2d at 282-
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No. 71058-3-1/11
83.2 Here, as in Hopson. even if Deputy O'Neill's testimony was even grossly negligent,
neither federal law nor the Oregon standard barred retrial.
Unit of Prosecution
In the alternative, Collins contends the eight convictions for possession of stolen
property violate double jeopardy. Double jeopardy protects a defendant from being
convicted more than once under the same statute if the defendant commits only one
crime. State v. Westlinq, 145 Wash. 2d 607, 610, 40 P.3d 669 (2002). If a defendant is
convicted of multiple violations of the same statute, the court must determine what unit
of prosecution the legislature intends as the punishable act under the statute. State v.
Tvedt. 153 Wash. 2d 705, 710, 107 P.3d 728 (2005).
A person commits the crime of possession of stolen property in the second
degree if he "possesses stolen property, other than a firearm ... or a motor vehicle,
which exceeds seven hundred fifty dollars in value but does not exceed five thousand
dollars in value." RCW 9A.56.160(1)(a). Possession of stolen property in the second
degree is a class C felony. RCW 9A.56.160(2). Possession of stolen property in the
third degree is a gross misdemeanor. RCW 9A.56.170(2).
The State concedes that under State v. McRevnolds. 117 Wash. App. 309, 71 P.3d
663 (2003), seven of the eight convictions for possession of stolen property must be
dismissed. We accept the State's concession as well taken. In McRevnolds, we held
2The court cites to other jurisdictions that "refused to apply the bar in similarcircumstances."
Hopson. 113Wn.2dat283. See, e.g.. State v. Maddox. 185 Ga. Ct. App. 674, 365 S.E.2d 516 (1988)
(police officer's testimony in drunk driving trial was not attributable to prosecutorial misconduct where
prosecutordid not actively aid or encourage the officer but rather had specifically instructed him not to
refer to defendant's prior convictions): State v. Fuller. 374 N.W.2d 722 (Minn. 1985) (the Minnesota
Supreme Court reversed a court of appeals decision wherethe lower court had barred retrial based on a
prosecutorial duty to properly instruct witnesses); see also State v. Butler. 528 So. 2d 1344 (Fla. Dist. Ct.
App. 1988) (prosecutor's failure to warn a state detective serving as a witness not to mention a stolen car
did not bar retrial).
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No. 71058-3-1/12
that because the simultaneous possession of property stolen from multiple owners
constituted one unit of prosecution of the crime, the multiple convictions for possession
of stolen property violated double jeopardy. McRevnolds. 117 Wash. App. at 339-40.
HTACA
Collins asserts that imposition of a consecutive sentence under the HTACA for
the three convictions of possession of a stolen firearm and the three convictions of
unlawful possession of a firearm violates his constitutional right against cruel
punishment. We review a constitutional challenge to the court's sentencing decision de
novo. State v. Cubias. 155 Wash. 2d 549, 552, 120 P.3d 929 (2005).
Under RCW 9.41.040(6) of the HTACA, the court must impose a consecutive
sentence for unlawful possession of a firearm in the first or second degree and for
felony possession of a stolen firearm. RCW 9.41.040(6) states, in pertinent part:
Notwithstanding any other law, if the offender is convicted under this
section for unlawful possession of a firearm in the first or second degree
and for the felony crimes of theft of a firearm or possession of a stolen
firearm, or both, then the offender shall serve consecutive sentences for
each of the felony crimes of conviction listed in this subsection.
Article I, section 14 of the Washington Constitution provides that "[e]xcessive bail
shall not be required, excessive fines imposed, nor cruel punishment inflicted." The
State constitutional proscription against "cruel punishment" affords greater protection
than its federal counterpart. Wash. Const, art. I, § 14; State v. Fain, 94 Wash. 2d 387,
392-93, 617 P.2d 720 (1980).
To determine whether a sentence is grossly disproportionate to the crime for
which it is imposed and thus violates the prohibition against cruel and unusual
punishment, it is necessary to consider (1) the nature of the offense, (2) the legislative
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No. 71058-3-1/13
purpose behind the sentencing statute, (3) the punishment the defendant would have
received for the same crime in other jurisdictions, and (4) the sentence the defendant
would receive for other similar crimes in Washington. Fain. 94 Wash. 2d at 397; State v.
Rivers. 129 Wash. 2d 697, 712-13, 921 P.2d 495 (1996). No single factor is dispositive.
State v. Gimarelli. 105 Wash. App. 370, 380-81, 20 P.3d 430 (2001). "Only on the very
rare occasion when a consecutive sentence is shockingly long has a court held
cumulative sentences cruel and unusual." Wahleithner v. Thompson. 134 Wn. App.
931,937, 143P.3d321 (2006).
The HTACA "carves out an area of criminal offenses, armed crime, and limits its
scope to increasing penalties for armed crime." State v. Broadaway. 133Wn.2d 118,
127-28, 942 P.2d 363 (1997).3 The HTACA targets crimes involving firearms as
warranting increased levels of punishment. The statutory provisions enacted as part of
the HTACA" '[distinguish between the gun predators and criminals carrying other
deadly weapons and provide greatly increased penalties for gun predators.'" In re
Pers. Restraint of Cruze. 169 Wash. 2d 422, 431, 237 P.3d 274 (2010)4 (quoting Laws OF
1995, ch. 129, § 1(2)(c)). "It is the province of the Legislature, if it so chooses, not the
appellate courts, to ameliorate any undue harshness arising from consecutive
sentences for multiple firearm counts." State v. Murphy. 98 Wash. App. 42, 49 n.8, 988
P.2d1018(1999).5
3 Emphasis in original.
4 Alteration in original, emphasis in original.
5 In Murphy, we held the plain language of RCW 9.41.040(6) required the court impose a
consecutive sentence for each of the 10 firearm theft and unlawful possession of a firearm convictions.
Murphy, 98 Wash. App. at 48-49. See also McRevnolds, 117 Wash. App. at 342-43 (holding the statute
required court to run each of defendant's multiple counts of possession of a stolen firearm and unlawful
possession of a firearm convictions consecutively).
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No. 71058-3-1/14
RCW 9.94A.589(1)(c) also underscores the legislature's intent to require
consecutive sentences for certain firearm offenses. RCW 9.94A.589(1)(c) states, in
pertinent part:
If an offender is convicted under RCW 9.41.040 for unlawful possession of
a firearm in the first or second degree and for the felony crimes of theft of
a firearm or possession of a stolen firearm, or both, the standard sentence
range for each of these current offenses shall be determined by using all
other current and prior convictions, except other current convictions for the
felony crimes listed in this subsection (1)(c), as if they were prior
convictions. The offender shall serve consecutive sentences for each
conviction of the felony crimes listed in this subsection (1)(c), and for each
firearm unlawfully possessed.
Because Collins concedes that several other jurisdictions have similar statutory
schemes, he fails to show that he would have been punished more leniently outside of
Washington. Federal law also imposes enhanced penalties for armed crime, and
federal courts have upheld consecutive sentences for firearm crimes. See, e.g., United
States v. Seoler. 37 F.3d 1131, 1134-35 (5th Cir. 1994) (upholding consecutive 60-
month sentence for unlawful possession of a firearm); Hudgins v. Wainwright. 530 F.
Supp. 944, 948-49 (S.D. Fla. 1981) (upholding consecutive 15-year sentence for
unlawful possession of a firearm), affd, 715 F.2d 578 (11th Cir. 1983), cert, denied. 466
U.S. 944, 104 S. Ct. 1928, 80 L. Ed. 2d 473 (1984). In Washington, possession of a
stolen firearm and unlawful possession of a firearm in the first degree are class B
felonies that carry a maximum sentence of 10 years. RCW 9A.56.310(6); RCW
9.41.040(1 )(b); RCW 9A.20.021(1)(b). With an offender score of 23, the court imposed
a low-end standard-range sentence for each of Collins' six firearm convictions.
We conclude that under the Fain factors, the imposition of consecutive sentences
for the six firearm convictions does not constitute cruel punishment.
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No. 71058-3-1/15
We affirm in part, reverse in part, and remand for resentencing on one count of
possession of stolen property.
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WE CONCUR:
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