Guns and Roses
By Wayne C. Fricke; April 2000

     I just completed a trial, which after the dismissal of several counts, went to the jury on seven counts of possession of a firearm in the first degree (RCW 9.41.040), with the underlying felony being a conviction for vehicular homicide in 1985.  The conviction for vehicular homicide, which was accomplished via a plea, did not specify which prong of the vehicular homicide statute to which the defendant pleaded.  As such, an interesting dilemma was created because in order to convict the defendant of first degree possession of a firearm, the predicate conviction for vehicular homicide must be based on intoxication or recklessness.  In analyzing this issue one should begin with the proposition that RCW 9.41.040 requires a constitutionally valid predicate conviction.  See State v. Reed, 84 Wn.App. 379, 384, 928 P.2d 469 (1997).

     Further, where there is any ambiguity in the underlying conviction of the predicate offense, a conviction for the charged offense cannot be sustained.  In State v. Greene, 94 Wn.2d 216, 616 P.2d 628 (1980), the Supreme Court held in an aggravated murder case that:

        LANCE: CHECK OUT IF WE NEED TO DO SOMETHING ABOUT THE QUOTE.

        “Where, as here, the commission of a specific underlying crime is necessary to sustain a conviction for a more serious statutory criminal offense, juror unanimity as to the underlying crime is imperative…”

         94 Wn.2d at 233.

     Following Greene, the Washington Supreme Court again remanded for a new trial where the jury verdict was ambiguous as to which prong of the vehicular homicide statute was used to find guilt.  See State v. McMaster, 113 Wn.2d 226, 778 P.2d 1037 (1989).  In McMaster, the court noted, that although there may have been substantial evidence under the reckless driving and “disregard for the safety of others” prongs to sustain the verdict of guilty, where the jury was instructed on all three alternative means in order to reach a guilty verdict, without a special instruction the court would simply have to guess as to the basis for the verdict.  113 Wn.2d at 234-35. 

     Further, the courts of this state have indicated that if there is any question as to a conviction that was based on one of three prongs of the vehicular homicide statute, upon conviction a defendant can only be sentenced to the lower standard range.  See State v. May, 68 Wn.App. 491, 497-98, 843 P.2d 1102 (1993).  See also State v. Tang, 77 Wn.App. 644, 650, 893 P.2d 646 (1995). 

     Although the cases noted above involve jury trials and not plea agreements, the same analysis should apply to the utilization of a predicate offense for purposes of determining the validity of a conviction of felony possession of a firearm.  Specifically, if the judgment of the predicate offense is based on a general verdict, as existed in my case, then the defendant should not be prosecuted for first degree possession of a firearm, otherwise his right to due process would be violated.

     Although the court indicated that it could use the actual plea agreement as a basis to clear up the ambiguity, my client’s plea agreement actually increased the ambiguity.  The statement of the defendant did not provide a factual basis for a conviction under the DUI prong of vehicular homicide as it existed in 1985.  In State v. McMaster, supra, the court interpreted the statute to require that not only must the defendant be intoxicated, the intoxication must be the proximate cause of the accident. LANCE: CHECK OUT IF WE NEED TO DO SOMETHING ABOUT THE QUOTE.

For a defendant to be guilty of vehicular homicide, the condition of impairment due to alcohol must have been a proximate cause of the fatal accident.  13 Wn.2d at 235 (emphasis added).

     In the prior plea, my client only indicated that he had been drinking and that his “driving was one of the causes of the accident. . .”  Further, the affidavit of probable cause only indicated that the defendant was driving the vehicle and he had a blood alcohol level of .25%.  Finally, neither the Information nor the Amended Information suggested that proximate cause was part of the requirements for conviction.

Thus, although the elements section of the plea agreement indicated that the plea was to the intoxication prong and also included “proximate cause” language, there was no factual basis in any of the documents which suggested that the intoxication proximately caused the accident. 

     The fact that my client never appealed the conviction directly does not act to waive the issues.  See State v. Summers, 120 Wn.2d 801, 846 P.2d 490 (1993).  Given that some old cases, pleas or otherwise, were perhaps not artfully prepared, a closer look at the procedure leading to the predicate conviction is necessary when representing clients charged with crimes based on prior convictions or as it relates to sentencing issues.  Failure to do so could lead to a malpractice claim or a claim based on ineffective assistance of counsel.

     The trial court initially denied my motion to dismiss prior to it going to the jury.  It did not have the advantage of having the law in front of it when it denied the motion as the issue came into existence at the very end of trial.  It did, however, indicate that it would revisit the issue in a post-trial motion, which has currently been filed.  I am hopeful of a favorable result.  When the case initially seemed impossible, my client may very well come out smelling like a rose.