STATE v. TANBERG (2004)

Published in Part Opinion

Double jeopardy protects persons from multiple punishments for the same crime.   The key consideration in analyzing a double jeopardy claim is to determine what punishment the legislature intended.   In making this determination, courts employ the same evidence test.   Under that test, if the two crimes each have an essential element that is not an element of the other crime, the crimes are not the same in law.   Absent clear contrary intent by the legislature, imposing punishments for both crimes does not violate double jeopardy.   Here, the appellant argues that his sentence violated double jeopardy because the same conduct supported both convictions.   We affirm both convictions and sentences because (1) first degree robbery and second degree assault are not the same in law and (2) there is no clear showing of legislative intent to preclude punishment for both crimes.   Additionally, we hold that the trial court did not err in refusing to grant a mistrial based on the prosecutor's comments at closing argument because any resulting prejudice could have been corrected with a proper instruction.

FACTS

CR was attacked by three men as she walked to her bus stop late one evening.   Witnesses testified that two African-American men and one Caucasian man took her purse and physically attacked her.   The witnesses identified Shaun Tanberg as the Caucasian attacker.   Tanberg was charged with first degree robbery by inflicting bodily injury and second degree assault.

At trial, Tanberg denied participating in the robbery and assault. He presented witnesses who testified that he was somewhere else at the time of the attack and that he did not have any African-American friends.   Tanberg objected to comments made by the prosecutor during closing argument and moved for a mistrial.   The trial court denied the motion for a mistrial, but instructed the prosecutor to restrict her comments to the evidence.   At the close of arguments, defense counsel again moved for a mistrial based on the prosecutor's statements.   The court denied the motion.

Tanberg was convicted of both first degree robbery and second degree assault, and the trial court sentenced Tanberg on both counts. Tanberg filed a timely notice of appeal, claiming that the trial court erred in denying his motion for a mistrial based on prosecutorial misconduct and that his sentence violated double jeopardy.

DISCUSSION

 The first issue we address is whether imposing sentences for both first degree robbery and second degree assault violated double jeopardy.   Under the Fifth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, no person shall “be subject for the same offense to be twice put in jeopardy of life or limb[.]”  Tanberg did not raise the issue of double jeopardy below, but as a “manifest error affecting his constitutional right to be free from double jeopardy,” he may raise it for the first time on appeal.  State v. Turner, 102 Wash.App. 202, 206, 6 P.3d 1226 (2000).   The key consideration in a double jeopardy analysis is whether the legislature intended separate punishments for the crimes.   When there is not an express statement of legislative intent, courts must employ rules of statutory construction in order to determine legislative intent.   Here, there is not an express statement of legislative intent, so we turn to tools of statutory construction.

 Courts use the same evidence test to determine whether the legislature intended multiple punishments.  State v. Calle, 125 Wash.2d 769, 780, 888 P.2d 155 (1995).   Under this test, the court must determine whether the crimes are the same in law and in fact:

In order to be the “same offense” for purposes of double jeopardy the offenses must be the same in law and in fact.   If there is an element in each offense which is not included in the other, and proof of one offense would not necessarily also prove the other, the offenses are not constitutionally the same and the double jeopardy clause does not prevent convictions for both offenses.

State v. Vladovic, 99 Wash.2d 413, 423, 662 P.2d 853 (1983).

Here, the State charged Tanberg with first degree robbery and second degree assault.   Robbery, as defined under RCW 9A.56.190, involves a taking of personal property:

A person commits robbery when he unlawfully takes personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone․

Robbery in the first degree occurs when, “in the commission of a robbery or in immediate flight therefrom, he or she:  ․ [i]nflicts bodily injury [.]”  RCW 9A.56.200(1)(a)(iii).   Bodily injury is defined as “physical pain or injury, illness, or an impairment of physical condition[.]”  RCW 9A.04.110(4)(a).

Second degree assault is defined under RCW 9A.36.021(1)(a):  “A person is guilty of assault in the second degree if he or she ․ [i]ntentionally assaults another and thereby recklessly inflicts substantial bodily harm [.]”  Substantial bodily harm is defined as “bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part[.]”  RCW 9A.04.110(4)(b).

 An essential element of robbery is the taking of property belonging to another person.   This is not an element of assault.   Intent to assault is an essential element of second degree assault.   Intent to assault is not an element of robbery.   The crimes, therefore, are not the same in law.   Tanberg argues that the crimes, as charged in his case, are the same because the State relied on the same evidence to prove both charges.   The issue is not, however, whether the same evidence is required to prove both crimes under the particular facts of the case, but whether proof of the same elements is necessarily required in all cases to establish the crimes.

At oral argument, counsel for Tanberg urged the court to consider the United State Supreme Court's decision in United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993).   Tanberg cited Dixon in his briefs, but did not provide analysis. The holding in Dixon, however, does not support Tanberg's argument that his convictions violate double jeopardy.   As a condition of release, Dixon was specifically ordered not to commit “any criminal offense.”   Dixon was later arrested and charged with a drug offense.   Based upon the same conduct, he was also charged with criminal contempt for committing a criminal offense in violation of the court's order.   Dixon was convicted of both the underlying drug charge and criminal contempt for committing the crime.   Under these circumstances, convictions for both the underlying crime and contempt violated double jeopardy because the same elements would necessarily be required to prove the underlying crime and contempt based on that crime.

Tanberg's case, as Dixon illustrates, is different.   Foster, another respondent in Dixon, was subject to a protective order that included the provision not to “ ‘molest, assault, or in any manner threaten or physically abuse’ ” his wife.  Dixon, 509 U.S. at 700, 113 S.Ct. 2849.   Foster was convicted of violating that provision of the protective order and of assault with the intent to kill for the same conduct.   In his opinion, Justice Scalia concluded that because each crime contained different elements and “[a]pplying the Blockburger [v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)] elements test, the result is clear:  These crimes were different offenses, and the subsequent prosecution did not violate the Double Jeopardy Clause.”  Dixon, 509 U.S. at 701-02, 113 S.Ct. 2849.   The same is true here, where second degree assault requires intent to assault, which is not an element of first degree robbery and first degree robbery requires a taking of property, which is not an element of second degree assault.

Tanberg also relies on State v. Springfield, 28 Wash.App. 446, 624 P.2d 208 (1981) and State v. Bresolin, 13 Wash.App. 386, 534 P.2d 1394 (1975), where the courts held that convictions for second degree assault and first degree robbery violated double jeopardy.   The State urges us to hold that these cases are no longer applicable because Calle overruled them.   Tanberg, on the other hand, argues that the holdings in Springfield and Bresolin are still applicable and cites Division Three's reliance on those holdings in State v. Zumwalt, 119 Wash.App. 126, 132, 82 P.3d 672 (2003).

Springfield and Bresolin purport to employ the same evidence test but, in fact, either employ the same conduct test or misapply the same evidence test.   In Springfield, the court stated, “Where there is no cessation of the infliction of injury, there are not separate acts of violence which would support conviction of both robbery and assault.”  Springfield, 28 Wash.App. at 451, 624 P.2d 208.   Additionally, in Bresolin, the court stated, “only one punishment [is] appropriate for a single criminal act” and “[u]nder the evidence in this case, the assaults inflicted were not separate and distinct from the force required for the robbery.”  Bresolin, 13 Wash.App. at 394, 534 P.2d 1394.   While the courts in Springfield and Bresolin stated that they were applying the same evidence test, the analysis in both cases focused on the conduct of the defendants and the evidence as presented in those specific cases.   In both Springfield and Bresolin, a proper application of the same evidence test would show that multiple punishments did not violate double jeopardy.   Because the courts did not correctly apply the same evidence test, the holdings in Springfield and Bresolin have been superceded by the more recent holdings.

In contrast, State v. Cole, 117 Wash.App. 870, 73 P.3d 411 (2003), correctly applied the same evidence test.   In that case, Cole attempted to take a wallet from the victim.   When the first attempt was unsuccessful, Cole cut the victim's hands with a knife and put the knife to the victim's throat while threatening him.   Cole was convicted of attempted first degree robbery and second degree assault.   The use of the knife was the same circumstance used to elevate both the attempted robbery and assault charges.   The court held that the crimes included different elements and that there was no clear indication that the legislature intended to disallow punishment for both crimes.

Therefore, under a correct application of the same evidence test, first degree robbery and second degree assault do not constitute the same offense for double jeopardy purposes.   This does not end the analysis however.

The results of the same evidence test are “not ․ controlling where there is a clear indication of contrary legislative intent.”  Calle, 125 Wash.2d at 778, 888 P.2d 155.   If the crimes are not the same in law, however, “there is a strong presumption that the legislature intended separate punishment for each offense, even if they are committed in a single act.”  Cole, 117 Wash.App. at 875, 73 P.3d 411.   Whether the legislature intended separate punishments for both crimes is not a case-by-case determination based on the facts of each case.   Rather, the inquiry is whether the legislature in enacting the statutes intended separate punishments.

One indicator of legislative intent is the evil that the crimes address.   Here, “[t]he assault and robbery statutes do not address identical evils.”   Cole, 117 Wash.App. at 877, 73 P.3d 411.   The assault statute addresses assaultive behavior, while the robbery statute “ ‘serves to protect individuals from loss of property and threat of violence to their persons.’ ”  Cole, 117 Wash.App. at 877, 73 P.3d 411 (quoting State v. Vermillion, 112 Wash.App. 844, 861-62, 51 P.3d 188 (2002), review denied, 148 Wash.2d 1022, 66 P.3d 638 (2003)).

Another tool of statutory construction used to determine legislative intent is the merger doctrine.  State v. Vladovic, 99 Wash.2d at 419 n. 2, 662 P.2d 853. Tanberg argues that the merger doctrine applies to first degree robbery and second degree assault and, therefore, multiple punishments are not appropriate.   Tanberg relies on a recent Division Three case that held that convictions for second degree assault and first degree robbery merge.   In Zumwalt, Division Three correctly articulated the merger test:  “If, in order to prove a particular degree of a crime, the State must prove the elements of that crime and also that the defendant committed an act that is defined as a separate crime elsewhere in the criminal statutes, the second crime merges with the first.”

The court then stated, citing RCW 9A.56.200(1)(a)(iii):  “To prove first degree robbery, the State must prove the elements of robbery, plus bodily injury constituting assault.”  Zumwalt, 119 Wash.App. at 131, 82 P.3d 672.   This statement, however, is incorrect.   Assault in the second degree requires that the defendant act with the intent to cause the harm.   Intent to injure is not required for first degree robbery.   Additionally, the injury in second degree assault must be “substantial bodily harm.”   For a first degree robbery there must only be “bodily injury.” ¹

Apparently relying on the incorrect assertion that an assault is required to prove first degree robbery by inflicting bodily injury, the court concluded that “if the unlawful force used in the robbery is the same conduct as that comprising the alleged assault, and if the force required for the assault had no separate purpose or effect, the charges merge and double jeopardy precludes separate convictions.”  Zumwalt, 119 Wash.App. at 132, 82 P.3d 672.   Because the Zumwalt court misapplied the merger doctrine, we will not apply its analysis here.

We instead follow State v. Freeman, 118 Wash.App. 365, 76 P.3d 732, which correctly applied the merger doctrine and held that first degree robbery and first degree assault do not merge.   In Freeman, the court noted:

[T]he “inflicts bodily injury” means of elevating robbery to that of the first degree does not require proof of an act that is defined as a crime elsewhere in the criminal code, for example, assault, because the infliction of injury need not be intentional to raise the level of robbery to that of the first degree.

Freeman, 118 Wash.App. at 376, 76 P.3d 732.   Under this reasoning, second degree assault does not merge into first degree robbery because first degree robbery does not require an intentional act.

Because there is not a clear indication that the legislature intended only one punishment for the crimes of first degree robbery and second degree assault, we affirm the trial court's decision and hold that double jeopardy does not preclude convictions for both first degree robbery and second degree assault.

Affirmed.

The remainder of this opinion has no precedential value.   Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions.

We next address whether the trial court erred in refusing to grant a mistrial based on alleged prosecutorial misconduct.   Prosecutorial misconduct may deprive a defendant of his or her constitutional right to a fair trial.   State v. Davenport, 100 Wash.2d 757, 762, 675 P.2d 1213 (1984).   Statements by a prosecutor constitute misconduct, requiring reversal if the comments were improper and the defendant was prejudiced.  State v. Reed, 102 Wash.2d 140, 145, 684 P.2d 699 (1984).  “Prejudice is established only if there is a substantial likelihood the instances of misconduct affected the jury's verdict.”  State v. Pirtle, 127 Wash.2d 628, 672, 904 P.2d 245 (1995).   A mistrial is proper only if the defendant was so prejudiced by the misconduct that only a new trial will ensure a fair trial.  State v. Mak, 105 Wash.2d 692, 701, 718 P.2d 407 (1986).

Here, Tanberg argues that the prosecutor's statements during closing argument constituted misconduct and that there is a substantial likelihood that the misconduct affected the verdict.   The allegedly improper comments stem from testimony and argument regarding where the attack took place and the witnesses' ability to see the events.   At trial, Joni Hunter and Richard Miller testified that the assault took place on or near the sidewalk.   They testified that the lighting in that area was good and allowed them to see what was happening.   Miller also testified that there was a parking lot down an incline from the sidewalk that was much darker, but that the lighting was good in the area where the assault occurred.

Defense counsel questioned the two officers who spoke with Hunter and Miller on the night of the attack.   On cross-examination, defense counsel asked Officer Jaminson, “Now, in terms of [Mr. Miller and Mr. Hunter], you also indicated [in your report] that you were told that this woman was shoved down an area that was, like, three feet down off the sidewalk, is that correct, on 196th?”   Officer Jamison responded:  “I'm guessing it's about a two or three-foot drop, sir.”   Defense counsel also asked, “All right.   So what they indicated to you, at least orally, was that this was at a lower level than just street level.   They would have been done [sic] two or three feet;  is that correct?”   Officer Jamison answered, “I know that they indicated that she had been knocked down there.”   Defense counsel also questioned Officer Gillebo:  “There was also some indication, was there not, that this woman who was assaulted had been knocked off a sidewalk and down about a three-foot drop;  is that correct?”   He replied, “Yes, sir.”   On redirect examination, Officer Gillebo testified that “they assaulted her on the sidewalk and then knocked her down after the assault down the hill.”   A private investigator, Michael Schoonover, also testified that there was a small rockery near the scene of the attack with a three- or four-foot drop where the lighting was poor.

In closing argument, defense counsel discussed the reliability of the State's evidence based on the witnesses' ability to see the attack:

You should also have a reasonable doubt because of the decline.   You were told by two police officers, not just one, but two, if you listened carefully, first, Officer Jamison and then Officer Gillebo, that when they talked to these men they told them that the assault had occurred when the woman was down the decline.   And Officer Gillebo admitted, he testified under oath in a prior hearing in front of a judge, they said that there was a sidewalk, and there was a rockery next to the sidewalk, about a three-foot drop.   And they said they had knocked her down there and started punching her about the face and everything like that.   So the punching started after the woman was knocked down the three-foot decline.   And you heard the testimony of Mr. Schoonover.   I was out there at dark, and if somebody was down in that area you would have an extremely difficult time to make observation of them.   And that's where they allege the person was when they initially went by.

In rebuttal argument, the prosecutor responded to defense counsel's statements about the incline:

Now, nobody but Mr. Krom [defense counsel] said that this happened down the embankment.   They all described the area that at that corner there is an embankment that goes down, it was there that they knocked the lady down, they all described to you.   But that by there, they meant at that location.   It was only a lawyer who can twist and contort the words there to mean down the embankment there.   That was nobody's testimony except for Mr. Krom's.

And I submit, speaking of Mr. Krom's testimony, you you [sic] didn't hear from the defense witnesses, you heard Mr. Krom testimony [sic], because Mr. Krom put the words in each one of those witness's [sic] mouths.

Defense counsel objected to this testimony and moved for a mistrial.   The trial court denied the motion for a mistrial, but asked “counsel to restrict her arguments to what the evidence shows.” The prosecutor then clarified her statements:  “The witnesses, when you ask[ed] them specific questions, all did give different answers.   The only time their answers were similar were based upon the leading questions.   And, again, I submit that that's the only testimony we heard.”

At the close of arguments, defense counsel renewed his motion for a mistrial, claiming that the prosecutor accused him of subordining perjury in front of the jury.   In the alternative, defense counsel requested a curative instruction.   In response, the trial court stated:

Well, if you want to submit a curative instruction, I would consider giving it.   I treated the prosecutor's comment, although it could well be interpreted as a personal attack and a suggestion that all of the witnesses were merely reciting what you had told them or things of that sort, I interpreted her comments to be a reflection on the nature of the leading questions that had often been asked of these witnesses[.]

There is no record of a proposed curative instruction.   The trial court did, however, instruct the jury that the “attorney's remarks, statements and arguments are intended to help you understand the evidence and apply the law.   They are not evidence.   Disregard any remark, statement or argument that is not supported by the evidence or the law as stated by the court.”

The first issue we address is whether the prosecutor's arguments were improper.  “In closing argument, the prosecuting attorney has a wide latitude in drawing and expressing reasonable inferences from the evidence.”  Mak, 105 Wash.2d at 726, 718 P.2d 407.   The State asserts that the prosecutor made the statements to argue that defense counsel was mischaracterizing the evidence by distorting the witnesses' testimony.   On the other hand, Tanberg argues that the statements implied that his counsel instructed the witnesses to lie and therefore suborned perjury.   In arguing that he is entitled to a new trial, Tanberg points to a cases from the Second and Ninth Circuits.

In United States v. Friedman, 909 F.2d 705 (2d Cir.1990), Friedman was charged with a variety of drug crimes involving both marijuana and cocaine.   The government alleged that Friedman was behind the transaction in which Albert Ortiz sold 362 grams of cocaine to a government informant for $10,000.   The defense's theory was that Friedman thought that he was participating in a marijuana transaction and not a cocaine transaction.

During summation, the prosecutor repeatedly referred to defense counsel as a “witness.”   The prosecutor stated, “ ‘[o]ne of the witnesses in this case was Mr. Goldberger [Friedman's defense attorney].’ ”   Additionally, the prosecutor referred to “ ‘Mr. Goldberger's testimony, unsworn as it was,’ ” “ ‘the defendant's witness, Mr. Goldberger,’ ” and “ ‘the testimony of Mr. Goldberger.’ ”  Friedman, 909 F.2d at 707.   The prosecutor also stated:

“And some people would have you pull down the wool over your eyes and forget all that, because while some people, ladies and gentlemen, go out and investigate drug dealers and prosecute drug dealers and try to see them brought to justice, there are others who defend them, try to get them off, perhaps even for high fees.”

Friedman, 909 F.2d at 708.

Additionally, in challenging the defense's theory of the case, the prosecutor pointed out that the cocaine was delivered in a shoebox and that $10,000 worth of marijuana would fill half a bedroom and could not possibly fit in a shoebox.   Defense counsel objected, stating that he never argued that the shoe box contained all the marijuana:

Mr. Goldberg:  Objection, That's not my argument, Judge.

The Court:  Overruled.

Mr. McGuire:  That's his argument, and when he is exposed to the absurdity of it he wants you to believe it isn't his argument because he will make any argument he can to get that guy off.

Friedman, 909 F.2d at 708.

The Second Circuit held that the statements by the prosecutor were improper and warranted a mistrial.   In discussing the statement about defense attorneys trying to get drug dealers “off,” the court stated,

the prosecutor managed in one breath to undermine the presumption of innocence, the Government's obligation to prove guilt beyond a reasonable doubt, and the standards of propriety applicable to public prosecutors.   The jury was invited to conclude that everyone the Government accuses is guilty, that justice is done only when a conviction is obtained, and that defense counsel are impairing this version of justice by having the temerity to provide a defense and to try to “get” the guilty “off.”

Friedman, 909 F.2d at 709.   The court also addressed the statements made concerning defense counsel as a witness:

By repeatedly characterizing defense counsel as a “witness” and his opening statement as “unsworn testimony,” the prosecutor was urging the jury to ignore defense counsel's entirely legitimate role as an advocate, discharging as important a responsibility in representing the defendant as the prosecutor has in representing the United States.

Friedman, 909 F.2d at 709.   The court held that the egregious comments, taken as a whole, constituted prosecutorial misconduct that warranted a mistrial.   Here, while the prosecutor did refer to defense counsel as a “witness,” the statements overall do not compare with the egregious comments made in Friedman.   The statements did not rise to the level of misconduct and the prosecutor's argument, taken as a whole, supports the trial court's statement that the comments were “a reflection on the nature of the leading questions that had often been asked of these witnesses[.]”  Additionally, the trial court is in a better position to judge the appropriateness of the comments and gauge how the jury might interpret them.   While referring to counsel as a witness should be avoided, it is clear from the record that the statements were made to argue that defense counsel mischaracterized the evidence and were, therefore, not improper.

The Ninth Circuit held that comments by the prosecutor were improper and necessitated a new trial in Bruno v. Rushen, 721 F.2d 1193 (9th Cir.1983).   The comments in that situation, however, were much more serious than the comments made here.   In that case, the prosecutor strongly insinuated that a key witness's testimony changed as a direct result of the witness consulting an attorney:

Have you ever seen anything to compare with the machinations?   Talk about puppets, talk about malleable, talk about pressure!   That lady was brought down to a lawyer's office across the street from this building that very night, and spoke with the lawyer who represents her daughter (who was living with the defendant at the time of the murder).   She spoke with Mr. Serra who represents Mr. Bruno in this case.   And what happens?   The next day she has a lawyer of her own, recommended by Mr. Serra.   Does that all tell you what happened to that poor lady?   What kind of pressures did they exert on her?

Bruno, 721 F.2d at 1194.   Additionally, the prosecutor

lunged into a vicious attack on the accused's claims of innocence by openly hinting to the jury that the fact that the accused hired counsel was in some way probative of the defendant's guilt.   Indeed, the obvious import of the prosecutor's comments was that all defense counsel in criminal cases are retained solely to lie and distort the facts and camouflage the truth in an abominable attempt to confuse the jury as to their client's involvement with the alleged crimes.

Bruno, 721 F.2d at 1194.   The Ninth Circuit held that these comments were so improper that the defendant was denied a fair trial.

The comments here do not even approach the egregious nature of the comments made in Bruno.   We do not approve of the prosecutor's statement that “[i]t was only a lawyer who can twist and contort the words there to mean down the embankment there” as it was a disparaging remark directed at the entire legal profession and could play into negative, preconceived notions about the profession.   But given the context of the statement and the argument as a whole, it did not necessitate a mistrial.   A proper instruction could have corrected any prejudice resulting from the prosecutors statement.   Therefore, while we do not condone the prosecutors statement, we hold that the trial court did not abuse its discretion in denying Tanbergs motion for a mistrial. 2

Affirmed.

FOOTNOTES

1.   The State gives an example to illustrate the difference:  “The defendant tries to take the victim's purse.   She holds on to it.   The strap breaks.   The victim falls to the ground, bruising her knees.   The defendant escapes with the purse.   This defendant is guilty of first degree robbery, but he is not guilty of second degree assault, because (1) he may not have intended to commit an assault;  (2) he may not have been aware of the possibility that the victim might be harmed (so he may not have been reckless with regard to that result);  and (3) the injury that the victim suffered did not rise to the level of ‘substantial bodily harm.’ ”   Brief of Respondent, at 14-15.

FN2.  Tanberg also argues that the prosecutor's comments deprived him of effective assistance of counsel.   Because the comments were not prejudicial, Tanberg was not deprived of the effective assistance of counsel..  FN2.  Tanberg also argues that the prosecutor's comments deprived him of effective assistance of counsel.   Because the comments were not prejudicial, Tanberg was not deprived of the effective assistance of counsel.

COLEMAN, J.

APPELWICK, J., and ELLINGTON, A.C.J., concur.