State v. Brown , 139 Wash. 2d 20 ( 1999 )


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  • Ireland, J.

    This case involves a determination of (1) whether the trial judge abused his discretion in concluding the jurors did not engage in misconduct by using a trial ex*22hibit to reenact the crime charged, and (2) whether a sentencing court can impose an exceptional sentence downward below the time specified under RCW 9.94A-.310(4) for a deadly weapon enhancement. We conclude the trial judge did not abuse his discretion by refusing to grant a new trial when the jurors used a trial exhibit to reenact the crime charged. We further conclude that the “Hard Time for Armed Crime” initiative, codified in RCW 9.94A-.310(4), deprives a sentencing court of discretion to impose an exceptional sentence downward below the time specified for a mandatory deadly weapon enhancement. We remand to the superior court for resentencing consistent with this decision.

    FACTS

    On March 27, 1996, the Defendant, Natalie Brown, went to Titan Cox’s home, believing Cox had sent an angry message to her friend’s pager. Among a group of people gathered at Cox’s home for a barbecue, Brown confronted Cox and asked if they were still friends. Cox apparently walked away, lit a cigarette and, when Brown pursued him, blew cigarette smoke in her face. Brown claimed she became confused and feared for her safety because Cox was “a big guy,” who “always carried [knives].” Brown testified Cox “had that annoyed look, and then I saw him roll his shoulder back like he was about to throw a punch.” Report of Proceedings (RP) at 414. Brown said that as Cox punched her in the shoulder, she reached into her coat pocket, quickly grasped and opened a folding knife, and then cut Cox across the nose in self-defense. Cox denied hitting Brown or being aggressive. He testified that Brown suddenly grabbed him without provocation and cut his face, which has resulted in permanent scarring.

    At trial, Cox used his coat to demonstrate how Brown attacked him. During cross-examination, Brown’s attorney and Cox reenacted the assault. When Brown took the witness stand, she also demonstrated how the assault had occurred. While the coat Brown wore on the night of the *23incident was not offered into evidence, Cox testified his coat was the same type of trench coat worn by Brown. Brown’s testimony also described her trench coat as “matching.” 2 RP at 400.

    On November 19, 1996, the jury convicted Brown of second degree assault with a deadly weapon. Before sentencing, Brown moved for a new trial. Basing her motion on a juror’s affidavit, Brown argued the jurors conducted an improper experiment by wearing Cox’s coat, a trial exhibit, to test the difficulty of pulling Brown’s knife out of the coat pocket and opening it as Brown had testified.1 The trial court reviewed the parties’ written submissions and denied Brown’s motion. It reasoned that no new extrinsic evidence was introduced during the jury’s deliberations.

    The presumptive standard sentence range for Brown’s assault conviction was three to nine months. The sentencing court added a 12-month deadly weapon enhancement pursuant to RCW 9.94A.310(4)(b), to arrive at a total standard range of 15 to 21 months. The sentencing court, granting the jury’s unanimous request for leniency, imposed an exceptional sentence downward of seven months.

    The State appeals the trial court’s imposition of an exceptional sentence below the applicable 12-month deadly weapons enhancement. In her response, Brown cross-appeals the trial court’s denial of her motion for a new trial based on jury misconduct.

    ANALYSIS

    A. Jury Misconduct

    A trial court’s refusal to grant a new trial is reviewed for abuse of discretion. State v. Balisok, 123 Wn.2d 114, 117, 866 P.2d 631 (1994).

    The State argues Brown failed to make a sufficient rec*24ord to review this issue on appeal because the juror’s affidavit was never submitted to the trial court. It also argues the jury’s reenactment was proper because no new evidence was created or introduced. While the juror’s affidavit is missing from the record, it appears the defense produced it for the trial court. This is evidenced by the State’s silence when defense counsel said to the trial judge, “The affidavit for Mr. Newell was presented to the court. I trust the court’s received that.” RP at Defense Mot. and Sentencing, 2 RP at 2. In order to consider the merits of her argument, Brown’s version of the events are accepted.

    A new trial may be warranted when a jury considers information other than the evidence admitted at trial. See Balisok, 123 Wn.2d at 118. While a jury may use exhibits admitted in evidence to critically examine a defendant’s version of the events under a claim of self-defense, it may not rely on novel or extrinsic evidence, which is not subject to objection, cross-examination, explanation, or rebuttal. Id. at 118-19.

    In this case, the coat and knife used by the jury to reenact Brown’s story were admitted as trial exhibits. Although the coat belonged to Cox, the evidence established Brown wore a similar coat. At trial, Brown’s attorney and Cox reenacted the assault by using Cox’s coat to demonstrate how Brown assaulted him. When Brown took the witness stand, she also used Cox’s coat to demonstrate the assault.

    Brown has failed to establish misconduct. She concedes that if her coat had been introduced into evidence, the jury could have used it to conduct the experiment. Although Cox’s coat may have been larger than Brown’s, jurors are presumed to use their common sense and reasoning powers to compensate for this variable. See Balisok, 123 Wn.2d at 119 (jury’s simulation of self-defense claim was not misconduct merely because the juror simulating the defendant’s actions did not match the defendant’s proportions). The jurors’ reenactment was simply a critical examination of Brown’s self-defense theory with evidence already admitted at trial. The trial judge did not abuse his discretion by *25denying Brown’s motion for a new trial. Accordingly, Brown’s conviction is affirmed.

    B. The Exceptional Sentence Below the Mandatory Deadly Weapon Enhancement

    “Interpretation of a statute is a question of law reviewed by an appellate court de novo.” In re Post Sentencing Review of Charles, 135 Wn.2d 239, 245, 955 P.2d 798 (1998).

    Prior to Sentencing Reform Act of 1981 (SRA) amendments in 1995, a sentencing court’s discretion for a felony conviction was primarily governed by RCW 9.94A.120. This statute requires a sentencing court to impose a sentence within the offense’s sentencing range. RCW 9.94A. 120(1). However, “[a] court may impose a sentence outside the standard sentence range for that offense if it finds . . . there are substantial and compelling reasons justifying an exceptional sentence.” RCW 9.94A.120(2). While various offenses are excluded from exceptional sentence eligibility, second degree assault, a class B felony and the offense at issue in this case, is not among those excluded offenses. RCW 9.94A. 120(4).

    In 1995, the Legislature enacted, without amendment, Initiative 159, entitled “Hard Time for Armed Crime.” Laws of 1995, ch. 129; In re Charles, 135 Wn.2d at 246 (citing State v. Broadaway, 133 Wn.2d 118, 124, 942 P.2d 363 (1997)). Initiative 159 “split the previous deadly weapon enhancement into separate enhancements for firearms and for other deadly weapons, and broadened their application to all felonies except those in which using a firearm is an element of the offense.” State of Washington Sentencing Guidelines Comm’n, Adult Sentencing Guidelines Manual cmt. at 11-67 (1997). Although Initiative 159 did not amend RCW 9.94A.120, its purpose was to “increase sentences for armed crime.” In re Charles, 135 Wn.2d at 246 (citing Broadaway, 133 Wn.2d at 128). This new law thus increases the sentence enhancement for an offender found to have been armed with a firearm or deadly weapon *26during the commission of the offense. In re Charles, 135 Wn.2d at 246.

    The SRA provides that a presumptive sentence range is based on a defendant’s offender score and the seriousness level of the offense. RCW 9.94A.310(1). When a jury makes a special finding that a felony offender was armed with a deadly weapon, certain “additional times shall be added to the presumptive sentence[.]” RCW 9.94A.310(4). See In re Charles, 135 Wn.2d at 253-54. Initiative 159’s amendments to the SRA provide that 12 months shall be added to the presumptive sentence for felony crimes if the offender was armed with a deadly weapon and the felony was defined under any law as a class B felony. RCW 9.94A.310(4). Former RCW 9.94A.310(4)(e)2 also provided:

    Notwithstanding any other provision of law, any and all deadly weapon enhancements under this section are mandatory, shall he served in total confinement, and shall not run concurrently with any other sentencing provisions.

    (Emphasis added.)

    The State, relying on the absolute language of RCW 9.94A.310(4)(e), argues Brown’s 12-month deadly weapon enhancement is a mandatory minimum punishment from which the sentencing court has no discretion to deviate. Brown responds that enhancements are added to and become part of the presumptive sentence range, from which the court has discretion to depart for compelling reasons under RCW 9.94A.120(2). Thus, Brown suggests that once the total range is calculated, given sufficient justification, the court can deviate from the sentencing range without limitation. Brown relies on In re Charles to support this proposition.

    In re Charles consolidated two criminal cases involving the computation of the length of sentences under the Hard Time for Armed Crime initiative. In In re Charles, both defendants faced multiple convictions, each carrying firearm enhancements. Under the Hard Time for Armed Crime ini*27tiative, former RCW 9.94A.310(3)(e)3 required that “[n]otwithstanding any other provision of law, any and all firearm enhancements . . . shall not run concurrently with any other sentencing provisions.” This directive requiring firearm enhancements to run consecutively “has a different result depending on whether the term ‘other sentencing provisions’ is read to mean other sentencing provisions of the SRA or other sentencing provisions of the particular defendant’s sentence.” In re Charles, 135 Wn.2d at 250. Absent any legislative intent serving to clarify this ambiguity, this court applied the rule of lenity to favor the defendants’ interpretation. In re Charles, 135 Wn.2d at 253-54. Accordingly, this court utilized RCW 9.94A.400 to determine whether the defendants’ enhancements should be served concurrently or consecutively, despite RCW 9.94A.310(3)(e)’s directive that firearm sentence enhancements shall run only consecutively. In re Charles, 135 Wn.2d at 254.

    Brown, relying on In re Charles, asserts that enhancements under RCW 9.94A.310(4)(e) are not immune from modification by other provisions of the SRA, namely RCW 9.94A.120’s exceptional sentence provisions. In other words, Brown claims the “notwithstanding” language present in RCW 9.94A.310(4)(e) cannot be construed as an absolute prohibition against discretionary downward departures for deadly weapon sentence enhancements.

    In re Charles is not controlling. In re Charles addresses whether firearm enhancements run consecutive to each other or whether they are consecutive to the base sentence but concurrent to each other when multiple offenses each carry deadly weapon enhancements and the sentences for each are imposed concurrently. In re Charles, 135 Wn.2d at 245. Brown, in contrast, has only one conviction and only one deadly weapon enhancement. If the defendants in In re *28Charles each had only one conviction and one enhancement, there would have been no ambiguity.4

    When a sentencing provision is reasonably subject to differing interpretations, an interpretation most favorable to the criminal defendant is adopted. See State v. Roberts, 117 Wn.2d 576, 586, 817 P.2d 855 (1991). Plain language in a statute, however, does not require construction. State v. Wilson, 125 Wn.2d 212, 216, 883 P.2d 320 (1994) . “In construing the meaning of an initiative, the language of the enactment is to be read as the average informed lay voter would read it.” Western Petroleum Importers, Inc. v. Friedt, 127 Wn.2d 420, 424, 899 P.2d 792 (1995) (citing Estate of Turner v. Department of Revenue, 106 Wn.2d 649, 654, 724 P.2d 1013 (1986)). RCW 9.94A-.310(4) begins by providing that deadly weapon enhancements “shall be added to the presumptive sentence^]” The more specific language within RCW 9.94A.310(4)(e) requires that “ [n] othwithstanding any other provision of law, any and all deadly weapon enhancements under this section are mandatory, [and] shall be served in total confinement.” This language clearly dictates a reading by the average informed lay voter that deadly weapon enhancements are mandatory and must be served.5

    Brown argues that the Legislature’s failure to include second degree assault in RCW 9.94A.120(4), which requires mandatory minimum sentences for certain crimes, is evidence that a deadly weapon enhancement is susceptible to an exceptional sentence. This argument confuses a sentence for an underlying crime with a sentence enhancement.

    *29An enhancement “is a statutorily-mandated increase to an offender’s sentence range because of a specified factor in the commission of the offense.” In re Charles, 135 Wn.2d at 253 (citing Washington Sentencing Guidelines Comm’n, Adult Felony Sentencing app. G, at G-l (1996)). “The structure of the SRA is that a sentencing court calculates a standard range sentence by applying the defendant’s offender score with the seriousness level of a crime. The court then adds any enhancements to a given base sentence.” In re Charles, 135 Wn.2d at 254. However, judicial discretion to impose an exceptional sentence does not extend to a deadly weapon enhancement in light of the absolute language of RCW 9.94A.310(4)(e).

    “This court has consistently held that fixing penalties for criminal offenses is a legislative, and not a judicial, function.” State v. Manussier, 129 Wn.2d 652, 667, 921 P.2d 473 (1996). While Brown’s arguments foster preservation of judicial discretion in sentencing, RCW 9.94A.310(4)(e) clearly provides that an offender’s sentence cannot be reduced below the times specified in RCW 9.94A.310(4)(b). If RCW 9.94A.310(4)(e) is to have any substance, it must mean that courts may not deviate from the term of confinement required by the deadly weapon enhancement. This case is remanded for resentencing consistent with our decision.

    Guy, C.J., and Smith, Alexander, and Talmadge, JJ., concur.

    Brown’s motion for a new trial and supporting affidavit are missing from the record.

    RCW 9.94A.310(4)(e) was amended by the Legislature in 1998, but that amendment does not apply to the events here, which took place in 1996.

    RCW 9.94A.310(3)(e) is identical to the statutory section at issue in this case, RCW 9.94A.310(4)(e). The only difference is that RCW 9.94A.310(3)(e) refers to “firearm” enhancements while RCW 9.94A.310(4)(e) refers to “deadly weapon” enhancements. Like RCW 9.94A.310(4)(e), RCW 9.94A.310(3)(e) was amended by the Legislature in 1998.

    In re Charles provides that “[w]hen the conviction is for a single offense, the provision is easy to interpret. The enhancement is added to the base sentence that would otherwise be imposed. But when the conviction is for two or more offenses, which are sentenced concurrently, questions of interpretation may arise . . . .” In re Charles, 135 Wn.2d at 251 (quoting Washington Sentencing Guidelines Comm’n, Adult Felony Sentencing app. F, at F-1 to F-2 (1996))

    Although the intent behind an enactment’s language becomes relevant only if there is some ambiguity in that language, Friedt, 127 Wn.2d at 423, interpreting deadly weapon enhancements as mandatory enhancements that must be served is consistent with Initiative 159’s purpose to “increase sentences for armed crime.” See In re Charles, 135 Wn.2d at 246.

Document Info

Docket Number: No. 67024-2

Citation Numbers: 139 Wash. 2d 20

Judges: Ireland, Madsen

Filed Date: 9/9/1999

Precedential Status: Precedential

Modified Date: 8/12/2021