Washington v. Recuenco, Arturo (06/26/2006)

Question presented: Whether error as to the definition of a sentencing enhancement should be subject to a harmless error analysis where it is shown beyond a reasonable doubt that the error did not contribute to the verdict on the enhancement?

BY DAN WELCH, MEDILL NEWS SERVICE

Furious that his wife didn't cook dinner for his sisters, Arturo Recuenco smashed their new kitchen stove with a metal pipe and threatened his wife with a gun.

He was arrested and charged in King County Circuit Court with second degree assault, interfering with domestic violence reporting and third degree malicious mischief.

Washington law carries a one-year sentencing enhancement for being armed with a deadly weapon other than a firearm during an assault, and a three-year enhanced sentence if a jury finds the offender had a firearm.

A special verdict form was submitted to the jury at the conclusion of Recuenco's trial, asking if the defendant was armed with a deadly weapon at the time of the alleged assault. Neither side objected to the form, which did not specifically mention a firearm – although the existence of the firearm was undisputed during trial.

"Technically speaking, there was an error on the form" by not specifying the firearm, said Jim Whisman, senior deputy prosecutor for King County.

The jury convicted Recuenco on all three counts and returned a special verdict that he was armed with a deadly weapon during the assault.

At the sentencing hearing, the prosecutor argued for a three-month sentence for the assault, with an additional three-year firearm enhancement. Recuenco's attorney agreed with the three months for the assault, but argued that the jury would have had to return a verdict specifically convicting Recuenco of assault with a firearm to allow the three-year enhanced sentence.

The trial judge disagreed and imposed the 39-month sentence that included the firearm enhancement, noting the gun was clearly the weapon in question.

Recuenco appealed, arguing his 6th Amendment rights were violated by the enhanced sentence imposed without a jury deciding the firearm allegation had been proven beyond a reasonable doubt.

Greg Link, who represents Recuenco, argues the judge was wrong in imposing a sentence for a more serious crime he says prosecutors decided not to pursue.

"The error is not the form," Link said. "The error is that the jury returned a complete verdict, but the judge later imposed a sentence that went beyond the jury's verdict."

Relying on the 1999 U.S. Supreme Court opinion in Neder v. U.S., the Washington Court of Appeals held that any errors on the verdict form were harmless beyond a reasonable doubt and upheld Recuenco's conviction.

In Neder, a tax fraud case, the Supreme Court ruled that a single element missing or defined incorrectly in jury instructions can be harmless if the error didn't contribute to the verdict beyond a reasonable doubt.

But the Washington Supreme Court decided it was impossible for the trial judge to presume what a jury would have decided and reversed the Court of Appeals, remanding the case for re-sentencing based only on the one-year deadly weapon enhancement.

The Washington court relied largely on the 2000 Supreme Court opinion in Apprendi v. New Jersey, a case in which a trial judge applied a hate crime sentencing enhancement without a corresponding jury verdict. In deciding Apprendi, the Supreme Court ruled that any fact, besides information on prior convictions, that "increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt."

On Oct. 17, 2005, the U.S. Supreme Court accepted review in the case and allowed Recuendo to have his case heard without costs.

Central to the case is the line that distinguishes harmless error from structural error.

In 1993, the Court in Sullivan v. Louisiana decided a case in which the jury was not instructed that prosecutors must prove the elements of the offense beyond a reasonable doubt. Finding that this mistake affected the entire framework in which the trial proceeded, the Court deemed the error structural in nature, and ruled that the errors invalidate the conviction.

Other errors, in contrast, can be deemed harmless if, as in Neder, it's clear they don't affect the jury's decision.

Link argues the trial judge was wrong to deem the error in this case harmless because in doing so he speculated on what the jurors would have found had they been asked to consider a firearm enhancement.

"In this case, it's not that different from a directed verdict, where the judge would just impose his own verdict in the case," he said.

But Whisman says the judge didn't speculate on what the jury would have decided and any error made was harmless.

"The deadly weapon in this case was clearly a firearm," Whisman said. "This was not a judgment notwithstanding a verdict; it was a judgment in accordance with the verdict."

Link disagrees, arguing the judge violated the Double Jeopardy clause of the 6th Amendment by imposing a sentence for a crime greater than the jury considered.

"In a criminal case, a judge can't find a person guilty when a jury finds him innocent," Link argues, saying Washington's claim is akin to a jury convicting a person of assault, only to have the judge enter a murder conviction because the jury wasn't instructed on the elements of the murder charge.

The Washington Supreme Court did not comment on the Double Jeopardy issue in its decision, instead basing its reasoning on Apprendi.

The question in this case, then, is whether the error on the verdict form is harmless, in which case Neder would apply, or structural in nature, which would rely on the Sullivan and Apprendi precedents.

Whisman worries that if he loses the case, the precedent will make it open season for taking advantage of errors in courtrooms across the country.

"Do you need to have a retrial every time a mistake is made, even if the mistake didn't affect the outcome of the case?" he said. "It's a dollars and cents issue for the criminal justice system."

Both Apprendi and the related 2004 case, Blakely v. Washington, were 5-4 decisions, so this case may come down to the vote of new Chief Justice John Roberts or the possible replacement for Justice Sandra Day O'Connor.

"Both new members as well as old members are bound by past decisions and precedents," Whisman said.

So the only question is: Will the Court look to Neder or Apprendi for its precedent?

On June 26, 2006, the Court answered the question and looked to Neder for guidance.

Writing for a 7-2 majority, Justice Clarence Thomas sided with the state, concluding that failure to submit a sentencing factor to the jury is not "structural" error, requiring automatic reversal.

Justices John Paul Stevens and Ruth Bader Ginsburg, dissented.