[No. 78999-1. En Banc.]
Argued May 3, 2007. Decided September 13, 2007.
In the Matter of the Personal Restraint of AARON EDWARD BORRERO, Petitioner.
[1] Personal Restraint — Scope — Constitutional Error — Prejudice — Burden of Proof. A personal restraint petitioner claiming constitutional error has the burden of showing actual prejudice by a preponderance of the evidence. The burden is waived if the particular error gives rise to a conclusive presumption of prejudice.
[2] Criminal Law — Former Jeopardy — Constitutional Provisions — State and Federal. The double jeopardy clauses of Const. art. I, § 9 and the Fifth Amendment provide the same protection.
[3] Criminal Law — Former Jeopardy — Multiple Punishments — In General. The double jeopardy clauses of Const. art. I, § 9 and the Fifth Amendment protect against multiple punishments for the same offense.
[4] Criminal Law — Former Jeopardy — Multiple Convictions — Same Offense — What Constitutes — Test. A criminal defendant may be convicted of and punished under separate criminal statutes for the same criminal act or transaction without being placed in double jeopardy if the legislature intended to authorize separate punishments for the crimes in question. Where the language of the statutes does not expressly disclose legislative intent with respect to multiple punishments, principles of statutory construction are applied to determine whether multiple punishments are authorized. The primary rule of statutory construction used for this purpose is the "same evidence" or Blockburger test (based on Blockburger v. United States, 284 U.S. 299 (1932)). Under the "same evidence" test, the offenses are not the "same" for double jeopardy purposes unless they are identical in law and in fact. Two offenses are not the same if each contains an element not contained in the other. It is presumed that the offenses are not the same if each requires proof of a fact that the other does not.
[5] Criminal Law — Former Jeopardy — Multiple Convictions — Same Offense — What Constitutes — Attempted Offense — "Substantial Step" Element — Factual Inquiry. When determining whether an attempted offense and a separate completed offense constitute the "same" offense for double jeopardy purposes, the "substantial step" element of the attempted offense takes on meaning only from the facts of each case. The "substantial step" element may not be treated merely as a generic element when comparing elements with the completed offense.
[6] Criminal Law — Former Jeopardy — Multiple Convictions — Same Offense — What Constitutes — Attempted Offense — "Substantial Step" Element — Supporting Facts Not Specified in Charging Document — Effect. For purposes of determining whether an attempted offense and a separate completed offense constitute the "same" offense for double jeopardy purposes, the fact that the information does not identify what facts constitute the "substantial step" element of the attempted offense does not necessarily mean that the facts supporting proof of the completed offense must be the same facts on which the trier of fact must rely in convicting the defendant of the attempted offense, particularly where there is evidence in the record that would establish the "substantial step" element of the attempted offense without also proving the completed offense and there is evidence that would prove the completed offense without also establishing the "substantial step" element of the attempted offense.
[7] Criminal Law — Former Jeopardy — Multiple Convictions — Same Offense — Attempted First Degree Murder and First Degree Kidnapping — Different Mental Elements. A charge of first degree kidnapping under RCW 9A.40.020(1)(b) that requires proof of intentionally abducting another with intent to facilitate commission of first degree robbery or flight therefrom does not constitute the same offense for double jeopardy purposes as attempted first degree murder under RCW 9A.28.020(1) and RCW 9A.32.030(1)(a), which requires the specific intent to kill. The mental elements for the two crimes are different, requiring different proof. The two offenses are, therefore, different in law.
SANDERS, J., dissents by separate opinion.
Nature of Action: An offender convicted of first degree kidnapping and attempted first degree murder sought relief from personal restraint on a claim that the convictions of both offenses placed him in double jeopardy in violation of the state and federal constitutions.
Supreme Court: Holding that the two offenses are not the same for double jeopardy purposes, the court denies the petition.
Sheryl G. McCloud- (of Law Offices of Sheryl Gordon McCloud), for petitioner.
Daniel T. Satterberg-, Interim Prosecuting Attorney, and Ann M. Summers-, Deputy, for respondent.
En Banc
¶1 MADSEN, J. — Personal restraint petitioner Aaron Borrero contends that his convictions for first degree kidnapping and attempted first degree murder violate the double jeopardy proscriptions of the state and federal constitutions. Relying on In re Personal Restraint of Orange, 152 Wn.2d 795, 100 P.3d 291 (2004), he maintains that the evidence of the kidnapping was the same evidence used to establish the substantial step element of the attempted murder. However, he has not established the claimed double jeopardy violation, and we therefore dismiss the personal restraint petition.
FACTS
¶2 In March 1997, Leslie Lemieux took a duffle bag containing marijuana to Kyle Anderson's home to complete a prearranged sale to Anderson. When Lemieux walked into the house, Borrero pointed a pistol at him and ordered him to lie down and Michael Vaughn held a shotgun to the back of Lemieux's head. Borrero tied Lemieux's hands and feet with wire. The marijuana was removed from the duffle bag and Lemieux was stuffed into it. Lemieux was then carried out and placed in the back of his jeep. After several hours' driving time, Lemieux was taken from the jeep while still tied and Borrero and Vaughn threw him into the Yakima River. He managed to break the bond between his hands and feet and reach the riverbank undetected. Lemieux contacted a passing motorist who summoned police.
¶3 Borrero was arrested in California two months later and ultimately charged with first degree kidnapping while armed with a deadly weapon and attempted first degree murder. At trial both Lemieux and Vaughn testified to the events described above; Borrero denied any involvement. Vaughn also testified that he, Borrero, and Anderson planned to rob Lemieux and then drown him, and that Anderson seized the marijuana while Lemieux was being held at gunpoint. A jury convicted Borrero on both counts and also returned a special verdict finding that Borrero was armed with a deadly weapon during commission of the kidnapping.
¶4 Borrero appealed, contending among other things that the trial court erroneously held the information was sufficient despite the fact it did not allege all the necessary elements of first degree murder in that it failed to expressly allege the "substantial step" element of the criminal attempt. The Court of Appeals affirmed the convictions. On discretionary review, this court affirmed the Court of Appeals, holding, among other things, that the information was sufficient because the element of "substantial step" was adequately conveyed by the word "attempt." State v. Borrero, 147 Wn.2d 353, 363, 58 P.3d 245 (2002).
¶5 Borrero filed a personal restraint petition, which was dismissed. Borrero filed this second personal restraint petition in this court, arguing that the evidence necessary to prove the kidnapping also proved the "substantial step" toward committing murder. He claims his convictions therefore violate double jeopardy principles.
ANALYSIS
¶8 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. Calle, 125 Wn.2d at 777. The "same evidence" or Blockburger test (Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932)) is the primary rule of statutory construction used. Under this test, double jeopardy principles are violated if the defendant is convicted of offenses that are identical in fact and in law. State v. Louis, 155 Wn.2d 563, 569, 120 P.3d 936 (2005); Calle, 125 Wn.2d at 777. 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. Orange, 152 Wn.2d at 816-18; Calle, 125 Wn.2d at 777-78. ¶11 As Borrero maintains, the State did not identify in the charging instrument what facts constituted the substantial step element of the attempted murder. He reasons that having instead used the term "attempt," which this court found sufficient in the charging instrument, the State must live with the consequence of this charging decision. The consequence, according to Borrero, is that the facts required to prove the kidnapping should be considered to be the same facts that the jury relied on in convicting him of attempted murder. These facts, Borrero maintains, are the abducting, moving, secreting, tying, and throwing Lemieux into the jeep, onto the ground, and into the river, which satisfy the elements of kidnapping. ¶12 Borrero argues, essentially, that where the facts comprising the element of "substantial step" are not identified in the charging instrument, the court should infer that the trier of fact relied on only the facts tending to prove both crimes. But this may not be what actually occurred, and the Court of Appeals rejected a similar argument in State v. Esparza, 135 Wn. App. 54, 143 P.3d 612 (2006). There, the defendant maintained that an assault was the substantial step toward the commission of attempted first degree robbery. The court noted that the elements of attempted robbery, including the substantial step, were only generically alleged in the charging instrument, and it was therefore not clear that the assault was the substantial step required to be proved by the State in order to prove commission of the attempted robbery. Id. at 63. In addition, the assault did not necessarily constitute the substantial step because, based on the proof at trial, there was other conduct not constituting assault that would be sufficient to establish that the defendant took a substantial step toward commission of first degree robbery. Id. at 64. The court concluded that under the facts, "it was not required for the State to prove facts sufficient to convict [the defendant] of second degree assault in order for it to prove [he] committed the offense of first degree attempted robbery." Id. ¶13 The same is true here. Because the information lists the elements in only "generic" terms, it is not clear that the kidnapping was a substantial step required to be proved in order to prove attempted murder. As in Esparza, different facts would support the two convictions. A "substantial step" is conduct strongly corroborative of the actor's criminal purpose. State v. Townsend, 147 Wn.2d 666, 679, 57 P.3d 255 (2002). The fact that Borrero and Vaughn threw Lemieux into the river while he was bound would be sufficient to prove the substantial step required for attempted first degree murder. The fact they threw him into the river is not necessary to the proof of kidnapping, however. Instead, the kidnapping conviction is supported by facts establishing that Borrero and Vaughn intentionally restrained Lemieux without his consent by "hog-tying" him and secreting him in the duffle bag in order to facilitate taking the marijuana from him and against his will by the use of immediate force—use of the firearms—(as well as by fear of injury), all while armed with deadly weapons. But without the evidence of throwing Lemieux into the river, evidence establishing the kidnapping arguably does not also establish the attempted murder. In any event, the facts required to prove the attempted first degree murder would not be sufficient to prove the kidnapping because throwing Lemieux into the river while bound would not establish a kidnapping with intent to facilitate robbery or flight therefrom. ¶14 Borrero has not established that he is being punished twice for the same offense based on his theory that the kidnapping constitutes the substantial step element of the attempted first degree murder. ¶16 Under the same evidence test and the additional analysis provided for under Orange where one offense is an attempt crime, a presumption arises in this case that the first degree kidnapping as charged and the attempted first degree murder as charged are not the same in fact and in law. Borrero does not maintain that there is any "clear indication of contrary legislative intent," and points to no evidence overriding the presumption. Calle, 125 Wn.2d at 778-80. Therefore, his claim that double jeopardy principles were violated fails. CONCLUSION ¶17 Borrero has not carried the burden of establishing constitutional error and it follows that he has not made the required threshold showing of constitutional error causing him actual prejudice. Accordingly, his personal restraint petition is denied. ALEXANDER, C.J., and C. JOHNSON, BRIDGE, CHAMBERS, OWENS, FAIRHURST, and J.M. JOHNSON, JJ., concur. ¶18 SANDERS, J. (dissenting) — The majority holds Aaron Borrero's convictions for first degree kidnapping and attempted first degree murder do not violate his constitutional protections against double jeopardy. I disagree. The State used the kidnapping to prove a necessary element of the attempted murder charge. Both charges relied on the same evidence and were the same in fact and in law, and Borrero cannot be punished twice for the same offense. Therefore, both convictions violate double jeopardy. ¶19 The United States Constitution guarantees no person shall be "subject for the same offense to be twice put in jeopardy of life or limb." U.S. CONST. amend. V. The Washington Constitution guarantees "[n]o person shall be . . . twice put in jeopardy for the same offense." WASH. CONST. art. I, § 9. To determine whether two convictions violate double jeopardy, we apply the Blockburger test and ask whether "[e]ach of the offenses . . . requires proof of a different element." Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932) ("[T]he test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not."). An attempt to commit a crime creates a particularly difficult issue because for the State to prove attempted murder it must show Borrero committed a "substantial step" toward the commission of the crime. RCW 9A.28.020(1) ("A person is guilty of an attempt to commit a crime if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime."). A substantial step must be " 'strongly corroborative of the actor's criminal purpose.' " State v. Workman, 90 Wn.2d 443, 451-52, 584 P.2d 382 (1978) (noting also mere preparation is not enough to show a "substantial step" and quoting MODEL PENAL CODE § 5.01(2) (Proposed Official Draft, 1962)). And most important for our purpose, we define what a substantial step is only in relation to the particulars facts and circumstances of each case. Majority at 537 (citing In re Pers. Restraint of Orange, 152 Wn.2d 795, 818, 100 P.3d 291 (2004)). Here, Borrero took a substantial step toward committing murder by kidnapping Leslie Lemieux. ¶20 But the State cannot charge and punish a defendant for a crime when that crime is also used to prove the substantial step of an attempt charge. In In re Orange, 152 Wn.2d at 814, the defendant was charged with attempted murder and assault. Applying the Blockburger test, we held the assault was the substantial step, and therefore Orange could not be punished for both crimes because they "were the same in fact and in law." Id. at 820. Similarly, the Court of Appeals held in State v. Valentine, 108 Wn. App. 24, 26, 29 P.3d 42 (2001), "[i]t is a double jeopardy violation to punish a stabbing separately as an assault when it is also the substantial step used to prove attempted murder." See In re Orange, 152 Wn.2d at 817 (citing Valentine's result with approval). This principle is well established not only by our courts, but by the United States Supreme Court as well. See Harris v. Oklahoma, 433 U.S. 682, 683, 97 S. Ct. 2912, 53 L. Ed. 2d 1054 (1977) (per curiam) (" '[A] person [who] has been tried and convicted for a crime which has various incidents included in it, . . . cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offence.' " (alterations in original) (quoting In re Nielsen, 131 U.S. 176, 188, 9 S. Ct. 672, 33 L. Ed. 118 (1889))). ¶21 So too it also violates double jeopardy to punish a kidnapping separately when it is the "substantial step" used to prove attempted murder. The majority claims, however, the kidnapping did not necessarily constitute the substantial step. Majority at 539. The majority dissects Borrero's conduct into discrete acts, claiming the jury might have relied on some particular aspect of Borrero's conduct (but not others) to support the attempted murder charge, and thus the jury did not necessarily rely on the entire kidnapping to find Borrero took a "substantial step" toward murder. Majority at . But no other conduct could have possibly filled the "substantial step" placeholder. And no other conduct was strongly corroborative of Borrero's overall purpose. Borrero waited for the victim, Leslie Lemieux, then with his accomplices stuffed Lemieux into a bag, bound and gagged him, and attempted to kill him by throwing the duffel bag into the Yakima River. The kidnapping was clearly the "substantial step" toward attempted murder. ¶22 To suggest the jury engaged in a pick-and-choose analysis, without considering Borrero's conduct as a whole, is somewhat incredulous. One cannot parse Borrero's conduct into separate moments, considering only certain aspects of what happened while ignoring others. Rather, the conduct must be viewed as a whole: Borrero kidnapped Lemieux to kill him. Indeed, the attempted murder hinged on the kidnapping. But for the kidnapping, Borrero could not have thrown Lemieux into the river or attempted to kill him. The two crimes were based on the same conduct, and the same evidence was required to support the conviction for first degree attempted murder as well as kidnapping. In other words, the kidnapping charge does not require proof of a fact not required by the attempted murder charge—specifically the "substantial step" element. ¶23 Therefore, it violates double jeopardy to punish Borrero separately for kidnapping when it is also the substantial step used to prove attempted murder. ¶24 I dissent.