State v. Gocken

896 P.2d 1267, 127 Wash. 2d 95
CourtWashington Supreme Court
DecidedJune 22, 1995
Docket61482-2; 61603-5
StatusPublished
Cited by211 cases

This text of 896 P.2d 1267 (State v. Gocken) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gocken, 896 P.2d 1267, 127 Wash. 2d 95 (Wash. 1995).

Opinions

Guy, J.

The question before the court is whether the double jeopardy clause of the Washington State Constitution, article I, section 9, extends broader individual rights to a criminal defendant than the double jeopardy clause of the United States Constitution, amendment V. We hold it does not.

Background

State v. Gocken

On October 28, 1990, at approximately 2 a.m., Mr. Frederick L. Gocken placed a license plate on a vehicle parked at the Shamrock Car Wash in the city of Spokane. He also handed what appeared to be cash to an unidentified person. Several people observed this transaction and reported their observations to the Spokane Police Department. Mr. Gocken left the car wash, stopping a short distance away when the vehicle he was driving overheated. Mr. Gocken was at the rear of the vehicle when several police officers contacted him regarding the citizens’ reports.

The police officers asked Mr. Gocken for his identification and vehicle registration. Mr. Gocken informed the police officers that his identification and a gun were inside the vehicle. The police officers asked Mr. Gocken if they could enter the vehicle and retrieve his identification. Mr. Gocken denied this request.

A police officer standing next to the vehicle observed [98]*98through the driver’s side window a marijuana pipe on the driver’s side floorboard. Mr.. Gocken was arrested for possession of drug paraphernalia in violation of RCW 69.50.412(1).1 The police officers searched the vehicle incident to the arrest and recovered a handgun, a Tupperware container containing marijuana, a plastic bag containing marijuana, a marijuana grow operation ledger, and cash totaling $1,355. Mr. Gocken was then arrested on a second charge — possession of a controlled substance with intent to deliver in violation of RCW 69.50.401(a).2

Mr. Gocken pleaded guilty in district court to the misdemeanor charge of possession of drug paraphernalia. Mr. Gocken then filed in Spokane County Superior Court a motion to dismiss the felony possession charge, claiming double jeopardy barred its prosecution. The Superior Court agreed with Mr. Gocken and dismissed the felony possession charge. The Court of Appeals reversed. State v. Gocken, 72 Wn. App. 908, 910, 866 P.2d 694 (1994). We granted Mr. Gocken’s petition for review.

State v. Crisler

On December 9, 1991, Ms. Mistie B. Crisler and another woman entered a Lamonts store in the city of East Wenatchee. After some discussion, each woman grabbed an armload of clothing and ran out of the store. Lamonts personnel pursued. Upon chase, both women dropped the merchandise they were carrying. The clothing was eventually collected and counted. The combined value of the stolen merchandise exceeded $250.

Ms. Crisler was charged by the City of East Wenatchee [99]*99with criminal conspiracy in violation of RCW 9A.28.040(1).3 On December 10, 1991, Ms. Crisler pleaded guilty in district court to the misdemeanor charge of criminal conspiracy. The court accepted her plea and entered a finding of guilt. Ms. Crisler was not represented by counsel.

On December 11, 1991, one day after her plea of guilty to criminal conspiracy, Ms. Crisler was charged by the County of Douglas with second-degree theft, a felony, in violation of former RCW 9A.56.040.4 The criminal conspiracy charge and the theft charge arose from the same incident at Lamonts. The East Wenatchee prosecutor continued sentencing on- the conspiracy conviction until the theft charge was resolved.

Ms. Crisler secured legal counsel and proceeded to trial. At trial, the Superior Court gave an accomplice instruction, WPIC 10.51,. based on the testimony that either Ms. Crisler or the other woman was heard to say, "Let’s go”, immediately prior to fleeing the store. On March 11, 1992, a jury found Ms. Crisler guilty of second-degree theft.

On March 23, 1992, Ms. Crisler moved to dismiss the theft conviction, claiming double jeopardy barred its prosecution. The Superior Court denied the motion.

On April 1, 1992, Ms. Crisler was sentenced for her theft conviction. She received a 15-day jail sentence with credit given for 15 days already served. On April 15, 1992, the East Wenatchee Prosecuting Attorney dismissed the conspiracy conviction.

Ms. Crisler appealed the Superior Court’s ruling denying her claim of double jeopardy to the Court of Appeals. The Court of Appeals affirmed. State v. Crisler, 73 Wn. [100]*100App. 219, 224, 868 P.2d 204 (1994). We granted Ms. Crisler’s petition for review and consolidated her case with Mr. Gocken’s pursuant to RAP 3.3(b).

Issue

We accepted review to determine whether the double jeopardy clause of the Washington State Constitution, article I, section 9, extends broader individual rights to a criminal defendant than the double jeopardy clause of the United States Constitution, amendment V.

Analysis

I

The double jeopardy clause of the United States Constitution guarantees that 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 double jeopardy clause of the Washington State Constitution guarantees that "No person shall ... be twice put in jeopardy for the same offense”. Const. art. I, § 9. The Fifth Amendment applies to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 23 L. Ed. 2d 707, 89 S. Ct. 2056 (1969).

The double jeopardy clause of the Fifth Amendment has been construed to encompass three separate constitutional protections:

It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.

(Footnotes omitted.) North Carolina v. Pearce, 395 U.S. 711, 717, 726, 23 L. Ed. 2d 656, 89 S. Ct. 2072, 2089 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 104 L. Ed. 2d 865, 109 S. Ct. 2201 (1989).

The Blockburger Test

In both the multiple punishment and successive [101]*101prosecution contexts, the Supreme Court has ruled double jeopardy applies if the two offenses for which the defendant is punished or tried cannot survive the "same elements” test. United States v. Dixon, 509 U.S. 688, 125 L. Ed. 2d 556, 568, 113 S. Ct. 2849 (1993).

The "same elements” test, commonly referred to as the

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Bluebook (online)
896 P.2d 1267, 127 Wash. 2d 95, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gocken-wash-1995.