State v. Lee

558 P.2d 236, 87 Wash. 2d 932, 1976 Wash. LEXIS 717

• Court: Washington Supreme Court
• Decided: December 30, 1976
• Docket: 43956
• Status: Published

Opinions

Hamilton, J.

Appellant, Press Lee, Jr., appeals the trial court judgment which declared him a habitual criminal pursuant to RCW 9.92.090.¹ Appellant challenges the constitutionality of the habitual criminal statute and assigns error to a number of evidentiary rulings by the trial judge.

In September 1973, appellant was charged and convicted of robbery. Respondent, the State of Washington, subsequently filed a supplemental information seeking an adjudication that appellant was a habitual criminal. The information also alleged five felonies,² including the recent robbery conviction. Appellant filed a motion to dismiss the information, and the trial court denied the motion. On May 10, 1974, a jury found appellant to be a habitual criminal. Appellant appealed both the denial of the motion to dismiss and the trial court judgment which declared him a habitual criminal. The Court of Appeals certified the case to this court, and we assumed jurisdiction.

Initially, appellant claims the habitual criminal statute is an unconstitutional delegation of legislative authority. RCW 9.92.090 is not a delegation of the legislature’s power to determine appropriate punishment for criminal violations. The statute merely vests the prosecution with the power to charge a person with the status of a habitual criminal. The prosecution must prove its allegations beyond a reasonable doubt. Implicit within the statute is a reasonable standard to govern the prosecuting attorney’s exercise of discretion to initiate these proceedings. The decision to prosecute must be based on the prosecutor’s ability to meet the proof required by the statute. State v. Anderson, 12 Wn. App. 171, 174, 528 P.2d 1003 (1974); State v. Williams, 9 Wn. App. 622, 625, 513 P.2d 854 (1973); see State v. Zornes, 78 Wn.2d 9, 23, 475 P.2d 109 (1970); State v. Canady, 69 Wn.2d 886, 891, 421 P.2d 347 (1966). We consider the statute a proper legislative investiture of authority to the executive branch. State v. Anderson, supra; State v. Williams, supra.

Appellant also contends respondent violated his due process rights and bases this contention on the premise that his habitual criminal status was determined solely by the prosecution. Appellant minimizes the importance of the supplemental criminal trial, which provides him with the right to counsel, the right to subpoena witnesses, the right to discover evidence, the right to a trial by jury, and the right to cross-examine witnesses. In State v. Anderson, supra at 174, the court stated:

Defendant also contends he was deprived of liberty without due process of law because he was not provided with an opportunity to be heard at the prosecutor’s meeting where the decision to file a habitual criminal information is made. We disagree. A defendant suffers no “deprivation” as a consequence of the prosecutor’s decision to allege habitual criminal status. His deprivation occurs only when and if the prosecutor proves the allegation at trial, where the defendant is afforded the full range of due process protections.

Respondent utilizes an efficient procedure to determine which individuals will be charged with habitual criminal status. State v. Nixon, 10 Wn. App. 355, 356-57, 517 P.2d 212 (1973), outlines this procedure:

Charges involving defendants whose criminal records indicate they would meet the King County prosecutor’s criteria for habitual criminal status have been assigned to deputies whose responsibility it is to determine whether the defendants were represented by counsel at the time of their prior convictions, the amount of time between those convictions, the nature and facts of the previous convictions, the availability of the necessary documents and the means for establishing the identity of the defendant as the person who committed the previous crimes. The deputy to whom the prosecution of the candidate for habitual criminal status has been assigned also prepares a resumé of the pending charge and determines if possible, the extent of the defendant’s criminal activity in the area.

This information is presented to a supervisors’ meeting which determines whether an habitual criminal charge will be filed. The supervisors consider whether the habitual criminal status can be established, the severity of the present offense charged, the severity of past offenses and the frequency of offenses. In addition, consideration is given to the appropriate punishment, the opportunity for and possibility of rehabilitation and the potential danger of the defendant to the community.

Also, when a particular individual is considered for a possible habitual criminal charge, his attorney is given an opportunity to submit any information to the prosecutor he considers beneficial to his client. Appellant was given this opportunity to submit additional information. Thus, both the habitual criminal trial and respondent’s office procedure satisfied the requirements of the due process clause. Accord, State v. Lei, 59 Wn.2d 1, 4, 365 P.2d 609 (1961); State v. Jackovick, 56 Wn.2d 915, 917, 355 P.2d 976 (1960); State v. Fowler, 187 Wash. 450, 452, 60 P.2d 83 (1936); State v. Edelstein, 146 Wash. 221, 250, 262 P. 622 (1927); State ex rel. Edelstein v. Huneke, 140 Wash. 385, 392, 249 P. 784 (1926); State v. Anderson, supra at 174; State v. Nixon, supra at 357-61; State v. Matte, 1 Wn. App. 510, 513-14, 462 P.2d 985 (1969); see Graham v. West Virginia, 224 U.S. 616, 56 L. Ed. 917, 32 S. Ct. 583 (1912); Oyler v. Boles, 368 U.S. 448, 456, 7 L. Ed. 2d 446, 82 S. Ct. 501 (1962); Poe v. State, 251 Ark. 35, 470 S.W.2d 818 (1971) (collecting cases); 39 Am. Jur. 2d Habitual Criminals and Subsequent Offenders §5 (1968).

Appellant next contends the statute deprives him of equal protection under the law. Appellant points to statistics which indicate respondent does not prosecute all eligible individuals under the habitual criminal statute. The prosecutor declines to prosecute many of the eligible individuals because he cannot meet the proof requirements of the statute.³

In Oyler v. Boles, supra at 456, the United States Supreme Court declared a similar statute constitutional and stated:

Moreover, the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.

The Oregon Supreme Court also upheld the constitutionality of its statute in State v. Hicks, 213 Ore. 619, 325 P.2d 794 (1958). The court stated at page 637:

We do find that there has been laxity in the enforcement of the habitual criminal law but mere laxity is not and cannot be held to be a denial of the equal protection of the law. If the failure of prosecutors to enforce the criminal laws as to some persons should be converted into a defense for others charged with crime, the result would be that the trial of the district attorney for nonfeasance would become an issue in the trial of many persons charged with heinous crimes and the enforcement of law would suffer a complete breakdown.

In the present case, respondent did not select appellant on the basis of some unjustifiable standard such as race, religion, or other arbitrary classification. Respondent selected appellant because he clearly meets the requirements of RCW 9.92.090. Thus, the statute does not deny appellant equal protection of the law. Accord, State v. Lei, supra at 4; State v. Jackovick, supra at 917; State v. West, 197 Wash. 595, 86 P.2d 192 (1939); State v. Edelstein, supra at 250; State v. Anderson, supra at 174; State v. Nixon, supra at 357-61; State v. Williams, supra at 625; State v. Matte, supra at 513-14; see Graham v. West Virginia, supra; Poe v. State, supra; 39 Am. Jur. 2d Habitual Criminals and Subsequent Offenders § 5 (1968).

Appellant’s sentence does not constitute cruel and unusual punishment. The life sentence contained in RCW 9.92.090 is not cumulative punishment for prior crimes. The repetition of criminal conduct aggravates the guilt of the last conviction and justifies a heavier penalty for the crime. State v. Miles, 34 Wn.2d 55, 61-62, 207 P.2d 1209 (1949); see Graham v. West Virginia, supra at 623. Appellant’s prior convictions were for robbery, two burglaries in the second degree, and assault in the second degree. He received the life sentence for the second robbery conviction. His punishment is not disproportionate to the underlying offense.⁴

Appellant assigns error to a number of evidentiary rulings by the trial judge. Appellant claims respondent did not properly authenticate a number of exhibits. Exhibits 1 and 2 are records of the Department of Social and Health Services. Each exhibit consists of: (1) an attestation by the custodian; (2) a certification of the custodian by the Secretary of State; (3) a photograph; (4) fingerprint records; (5) a copy of the judgment and sentence of King County Superior Court; and (6) a copy of the warrant of commitment. The trial court admitted exhibits 1 and 2 for the purpose of establishing the identity of appellant as the individual convicted of the two crimes.

CR 44(a) (1) prescribes a method of authenticating documents:

(a) Authentication.

(1) Domestic. An official record . . . may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied by a certificate that such officer has the custody. The certificate . . . may be made by any public officer having a seal of office or official custody of the seal of the political subdivision and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his office or the seal of the political subdivision.

The director of the Department of Institutions must maintain these exhibits as part of his official records. State v. Kelly, 52 Wn.2d 676, 328 P.2d 362 (1958). RCW 43.20A.210 transferred all powers of the director of the Department of Institutions to the secretary of the Department of Social and Health Services. The secretary is now the legal custodian of the Department of Social and Health Services’ records, and he may delegate his custodial duties to subordinates. RCW 43.20A.110; CR 44(a); see RCW 43.20A.220. In State v. Hodge, 11 Wn. App. 323, 329, 523 P.2d 953 (1974), the court stated:

[A] dministrative processes would come to an abrupt halt if the director had no authority to delegate to a subordinate at least those custodial responsibilities which are necessary to certify the accuracy of copies of records which the department regularly maintains in the performance of its statutory responsibilities. We hold, therefore, that the director . . . does have authority to subdelegate to another the custodial responsibilities which the legislature has delegated to him, to the extent that a designated subordinate may be authorized to certify the accuracy of departmental records.

In this case, the secretary delegated his custodial responsibility to an assistant who provided the trial court with the attested copies of appellant’s records. The Secretary of State certified the assistant as the legal custodian, and he affixed his seal to the certification.⁵ Respondent satisfied the requirements of CR 44(a), and the trial court properly admitted the exhibits.

Appellant also claims respondent did not properly authenticate exhibits 3 through 6, which are superior court records of appellant’s prior convictions. CR 44(c) provides:

This rule does not prevent the proof of official records or of entry or lack of entry therein by any other method authorized by law.

CR 44(c) preserves authentication by other means, including RCW 5.44.010, which states:

The records and proceedings of any court of the United States, or any state or territory, shall be admissible in evidence in all cases in this state when duly authenticated by the attestation of the clerk ... or other officer having charge of the records of such court, with the seal of such court annexed.

The clerk of the superior court is the official custodian of the records of court proceedings and may delegate his custodial authority to deputies. RCW 36.16.070; see State v. Hodge, supra. In the instant case, a deputy clerk certified exhibits 3 through 6 and affixed the clerk’s seal. The requirements of RCW 5.44.010 were satisfied, and respondent properly authenticated these records.⁶

Appellant also claims the trial court admitted irrelevant testimony. Evidence is relevant when it logically tends to prove a fact in issue. State v. Gersvold, 66 Wn.2d 900, 902-03, 406 P.2d 318 (1965); State v. Hults, 9 Wn. App. 297, 513 P.2d 89 (1973). The trial court allowed an officer to testify and identify appellant as the person he investigated for two criminal violations. This testimony tends to identify appellant as the person who committed the crimes. We find no error in allowing the testimony.

Appellant’s remaining contentions concern the trial judge’s voir dire of the jury. The trial judge asked the jurors if they had served at the time of appellant’s robbery conviction and questioned them as to their knowledge of the prior robbery trial. Appellant maintains these questions prejudiced the jury, because the statute requires respondent to prove appellant’s prior convictions. The record indicates the judge carefully explained to the jury that the prior convictions were allegations which respondent must prove beyond a reasonable doubt.

Appellant also contends the trial judge improperly instructed the jury during voir dire. We disagree. The judge merely followed CrR 6.4(b)⁷ and explained the nature of the case to the jury.

The judgment is affirmed.

.Stafford, C.J., and Hunter, Wright, Brachtenbach, and Horowitz, JJ., concur.

1 RCW 9.92.090, in part, provides:

“Every person convicted in this state of any crime of which fraud or intent to defraud is an element, or of petit larceny, or of any felony, who shall'previously have been twice convicted, whether in this state or elsewhere, of any crime which under the laws of this state would amount to a felony, or who shall previously have been four times convicted, whether in this state or elsewhere, of petit larceny, or of any misdemeanor or gross misdemeanor of which fraud or intent to defraud is an element, shall be punished by imprisonment in the state penitentiary for life.”

2 Prior to the robbery conviction, appellant was convicted of two burglaries in the second degree, robbery, and assault in the second degree.

3 A particular problem confronts the prosecuting attorney in meeting the requirements of the statute. In Burgett v. Texas, 389 U.S. 109, 19 L. Ed. 2d 319, 88 S. Ct. 258 (1967), the Supreme Court held that the prosecution cannot use a prior conviction in a habitual criminal proceeding if the defendant was not represented by counsel at all critical stages of the proceedings. A number of eligible individuals have at least one pre-1967 conviction, and certified copies of these convictions may not indicate whether the defendants were represented by counsel at all stages of the criminal proceedings. See State v. Montague, 10 Wn. App. 911, 921, 521 P.2d 64 (1974).

4 Appellant relies on Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973), to support his position that the life sentence constitutes cruel and unusual punishment. The Hart case is factually distinguishable from this case. There, defendant was given a life sentence under the habitual criminal statute for a perjury conviction. His two prior crimes were writing a check for insufficient funds and transporting a forged check across state lines. The life sentence in Hart was disproportionate to the underlying offenses.

5 Appellant also objects to the admission of exhibits 1 and 2 because they contain a number of pages stapled together, and the certification of the exhibits only appears on page 1 of the exhibits. Page 1, however, describes each page of the exhibits and the attestation and certification clearly apply to the subsequent pages.

6 Each exhibit satisfied the requirements of Burgett v. Texas, 389 U.S. 109, 19 L. Ed. 2d 319, 88 S. Ct. 258 (1967), in that the judgment specifically identifies appellant’s counsel in the prior criminal proceedings. Finally, there is no proof that any of the prior convictions are presently on appeal.

7 CrR 6.4(b) states, in pertinent part: “The judge shall initiate the voir dire examination by identifying the parties and their respective counsel and by briefly outlining the nature of the case.”