Washington v. Recuenco

(Slip Opinion) OCTOBER TERM, 2005 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

WASHINGTON v. RECUENCO

CERTIORARI TO THE SUPREME COURT OF WASHINGTON

No. 05–83. Argued April 17, 2006—Decided June 26, 2006

After respondent threatened his wife with a handgun, he was convicted

of second-degree assault based on the jury’s finding that he had as

saulted her “with a deadly weapon.” A “firearm” qualifies as a

“deadly weapon” under Washington law, but nothing in the verdict

form specifically required the jury to find that respondent had en

gaged in assault with a “firearm,” as opposed to any other kind of

“deadly weapon.” Nevertheless, the state trial court applied a 3-year

firearm enhancement to respondent’s sentence, rather than the 1

year enhancement that specifically applies to assault with a deadly

weapon, based on the court’s own factual findings that respondent

was armed with a firearm. This Court then decided Apprendi v. New

Jersey, 530 U. S. 466, holding that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt,” id., at 490, and Blakely v. Wash

ington, 542 U. S. 296, clarifying that “the ‘statutory maximum’ for

Apprendi purposes is the maximum sentence a judge may impose

solely on the basis of the facts reflected in the jury verdict,” id., at 303.

Because the trial court could not have subjected respondent to a fire

arm enhancement based only on the jury’s finding that respondent

was armed with a “deadly weapon,” the State conceded a Sixth

Amendment Blakely violation before the Washington Supreme Court,

but urged the court to find the Blakely error harmless. In vacating

respondent’s sentence and remanding for sentencing based solely on

the deadly weapon enhancement, however, the court declared Blakely

error to be “structural error,” which will always invalidate a convic

tion under Sullivan v. Louisiana, 508 U. S. 275, 279.

Held:

1. Respondent’s argument that this Court lacks power to reverse

2 WASHINGTON v. RECUENCO

Syllabus

because the Washington Supreme Court’s judgment rested on ade

quate and independent state-law grounds is rejected. It is far from

clear that respondent is correct that at the time of his conviction,

state law provided no procedure for a jury to determine whether a de

fendant was armed with a firearm, so that it is impossible to conduct

harmless-error analysis on the Blakely error in his case. The cor

rectness of respondent’s interpretation, however, is not determinative

of the question the State Supreme Court decided and on which this

Court granted review, i.e., whether Blakely error can ever be deemed

harmless. If respondent’s reading of Washington law is correct, that

merely suggests that he will be able to demonstrate that the Blakely

violation in this particular case was not harmless. See Chapman v.

California, 386 U. S. 18, 24. But it does not mean that Blakely er

ror—which is of the same nature, whether it involves a fact that state

law permits to be submitted to the jury or not—is structural, or that

this Court is precluded from deciding that question. Thus, the Court

need not resolve this open question of Washington law. Pp. 3–4.

2. Failure to submit a sentencing factor to the jury is not “struc

tural” error. If a criminal defendant had counsel and was tried by an

impartial adjudicator, there is a strong presumption that most con

stitutional errors are subject to harmless-error analysis. E.g., Neder

v. United States, 527 U. S. 1, 8. Only in rare cases has this Court

ruled an error “structural,” thus requiring automatic reversal. In

Neder, the Court held that failure to submit an element of an offense

to the jury—there, the materiality of false statements as an element

of the federal crimes of filing a false income tax return, mail fraud,

wire fraud, and bank fraud, see id., at 20–25—is not structural, but is

subject to Chapman’s harmless-error rule, id., at 7–20. This case is

indistinguishable from Neder. Apprendi makes clear that “[a]ny pos

sible distinction between an ‘element’ of a felony . . . and a ‘sentenc

ing factor’ was unknown . . . during the years surrounding our Na

tion’s founding.” 530 U. S., at 478. Accordingly, the Court has

treated sentencing factors, like elements, as facts that have to be

tried to the jury and proved beyond a reasonable doubt. Id., at 483–

484. The only difference between this case and Neder is that there

the prosecution failed to prove the materiality element beyond a rea

sonable doubt, while here the prosecution failed to prove the “armed

with a firearm” sentencing factor beyond a reasonable doubt. Assign

ing this distinction constitutional significance cannot be reconciled

with Apprendi’s recognition that elements and sentencing factors

must be treated the same. Respondent attempts unpersuasively to

distinguish Neder on the ground that the jury there returned a guilty

verdict on the offenses for which the defendant was sentenced,

whereas here the jury returned a guilty verdict only on the offense of

Cite as: 548 U. S. ____ (2006) 3

Syllabus

second-degree assault, and an affirmative answer to the sentencing

question whether respondent was armed with a deadly weapon. Be

cause Neder’s jury did not find him guilty of each of the elements of

the offenses with which he was charged, its verdict is no more fairly

described as a complete finding of guilt than is the verdict here. See

527 U. S., at 31. Pp. 5–9.

154 Wash. 2d 156, 110 P. 3d 188, reversed and remanded.

THOMAS, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and SCALIA, KENNEDY, SOUTER, BREYER, and ALITO, JJ., joined.

KENNEDY, J., filed a concurring opinion. STEVENS, J., filed a dissenting

opinion. GINSBURG, J., filed a dissenting opinion, in which STEVENS, J.,

joined.

Cite as: 548 U. S. ____ (2006) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–83

_________________

WASHINGTON, PETITIONER v. ARTURO R.

RECUENCO

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

WASHINGTON

[June 26, 2006]

JUSTICE THOMAS delivered the opinion of the Court.

Respondent Arturo Recuenco was convicted of assault in

the second degree based on the jury’s finding that he

assaulted his wife “with a deadly weapon.” App. 13. The

trial court applied a 3-year firearm enhancement to re

spondent’s sentence based on its own factual findings, in

violation of Blakely v. Washington, 542 U. S. 296 (2004).

On appeal, the Supreme Court of Washington vacated the

sentence, concluding that Blakely violations can never be

harmless. We granted certiorari to review this conclusion,

546 U. S. ___ (2005), and now reverse.

I

On September 18, 1999, respondent fought with his

wife, Amy Recuenco. After screaming at her and smash

ing their stove, he threatened her with a gun. Based on

this incident, the State of Washington charged respondent

with assault in the second degree, i.e., “intentiona[l] as

sault . . . with a deadly weapon, to-wit: a handgun.” App.

3. Defense counsel proposed, and the court accepted, a

special verdict form that directed the jury to make a spe

cific finding whether respondent was “armed with a deadly

2 WASHINGTON v. RECUENCO

Opinion of the Court

weapon at the time of the commission of the crime.” Id., at

13. A “firearm” qualifies as a “ ‘deadly weapon’ ” under

Washington law. Wash. Rev. Code §9A.04.110(6) (2006).

But nothing in the verdict form specifically required the

jury to find that respondent had engaged in assault with a

“firearm,” as opposed to any other kind of “deadly

weapon.” The jury returned a verdict of guilty on the

charge of assault in the second degree, and answered the

special verdict question in the affirmative. App. 10, 13.

At sentencing, the State sought the low end of the stan

dard range sentence for assault in the second degree

(three months). It also sought a mandatory 3-year en

hancement because respondent was armed with a “fire

arm,” §9.94A.533(3)(b), rather than requesting the 1-year

enhancement that would attend the jury’s finding that

respondent was armed with a deadly weapon,

§9.94A.533(4)(b). The trial court concluded that respon

dent satisfied the condition for the firearm enhancement,

and accordingly imposed a total sentence of 39 months.

Before the Supreme Court of Washington heard respon

dent’s appeal, we decided Apprendi v. New Jersey, 530

U. S. 466 (2000), and Blakely, supra. In Apprendi, we held

that “[o]ther than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the pre

scribed statutory maximum must be submitted to a jury,

and proved beyond a reasonable doubt.” 530 U. S., at 490.

In Blakely, we clarified that “the ‘statutory maximum’ for

Apprendi purposes is the maximum sentence a judge may

impose solely on the basis of the facts reflected in the jury

verdict or admitted by the defendant.” 542 U. S., at 303

(emphasis in original). Because the trial court in this case

could not have subjected respondent to a firearm en

hancement based only on the jury’s finding that respon

dent was armed with a “deadly weapon,” the State con

ceded before the Supreme Court of Washington that a

Sixth Amendment violation occurred under Blakely. 154

Cite as: 548 U. S. ____ (2006) 3

Opinion of the Court

Wash. 2d 156, 162–164, 110 P. 3d 188, 191 (2005). See

also Tr. of Oral Arg. 10–11.

The State urged the Supreme Court of Washington to

find the Blakely error harmless and, accordingly, to affirm

the sentence. In Washington v. Hughes, 154 Wash. 2d

118, 110 P. 3d 192 (2005), however, decided the same day

as the present case, the Supreme Court of Washington

declared Blakely error to be “ ‘structural’ erro[r]” which

“ ‘will always invalidate the conviction.’ ” Id., at 142, 110

P. 3d 205 (quoting Sullivan v. Louisiana, 508 U. S. 275, 279

(1993)). As a result, the court refused to apply harmless-

error analysis to the Blakely error infecting respondent’s

sentence. Instead, it vacated his sentence and remanded

for sentencing based solely on the deadly weapon en

hancement. 154 Wash. 2d, at 164, 110 P. 3d, at 192.

II

Before reaching the merits, we must address respon

dent’s argument that we are without power to reverse the

judgment of the Supreme Court of Washington because

that judgment rested on adequate and independent state-

law grounds. Respondent claims that at the time of his

conviction, Washington state law provided no procedure

for a jury to determine whether a defendant was armed

with a firearm. Therefore, he contends, it is impossible to

conduct harmless-error analysis on the Blakely error in

his case. Respondent bases his position on Hughes, in

which the Supreme Court of Washington refused to “cre

ate a procedure to empanel juries on remand to find ag

gravating factors because the legislature did not provide

such a procedure and, instead, explicitly assigned such

findings to the trial court.” 154 Wash. 2d, at 151, 110

P. 3d, at 209. Respondent contends that, likewise, the

Washington Legislature provided no procedure by which a

jury could decide at trial whether a defendant was armed

with a firearm, as opposed to a deadly weapon.

4 WASHINGTON v. RECUENCO

Opinion of the Court

It is far from clear that respondent’s interpretation of

Washington law is correct. See Washington v. Pharr, 131

Wn. App. 119, 124-125, 126 P. 3d 66, 69 (2006) (affirming

the trial court’s imposition of a firearm enhancement

when the jury’s special verdict reflected a finding that the

defendant was armed with a firearm). In Hughes, the

Supreme Court of Washington carefully avoided reaching

the conclusion respondent now advocates, instead ex

pressly recognizing that “[w]e are presented only with the

question of the appropriate remedy on remand—we do not

decide here whether juries may be given special verdict

forms or interrogatories to determine aggravating factors

at trial.” Id., at 149, 110 P. 3d, at 208. Accordingly,

Hughes does not appear to foreclose the possibility that an

error could be found harmless because the jury which

convicted the defendant would have concluded, if given the

opportunity, that a defendant was armed with a firearm.

The correctness of respondent’s interpretation of Wash

ington law, however, is not determinative of the question

that the Supreme Court of Washington decided and on

which we granted review, i.e., whether Blakely error can

ever be deemed harmless. If respondent is correct that

Washington law does not provide for a procedure by which

his jury could have made a finding pertaining to his pos

session of a firearm, that merely suggests that respondent

will be able to demonstrate that the Blakely violation in

this particular case was not harmless. See Chapman v.

California, 386 U. S. 18, 24 (1967). But that does not

mean that Blakely error—which is of the same nature,

whether it involves a fact that state law permits to be

submitted to the jury or not—is structural, or that we are

precluded from deciding that question. Thus, we need not

resolve this open question of Washington law.1

——————

1 Respondent’s argument that, as a matter of state law, the Blakely v.

Washington, 542 U. S. 296 (2004), error was not harmless remains open

Cite as: 548 U. S. ____ (2006) 5

Opinion of the Court

III

We have repeatedly recognized that the commission of a

constitutional error at trial alone does not entitle a defen

dant to automatic reversal. Instead, “ ‘most constitutional

errors can be harmless.’ ” Neder v. United States, 527

U. S. 1, 8 (1999) (quoting Arizona v. Fulminante, 499 U. S.

279, 306 (1991)). “ ‘[I]f the defendant had counsel and was

tried by an impartial adjudicator, there is a strong pre

sumption that any other [constitutional] errors that may

have occurred are subject to harmless-error analysis.’ ”

527 U. S., at 8 (quoting Rose v. Clark, 478 U. S. 570, 579

(1986)). Only in rare cases has this Court held that an

error is structural, and thus requires automatic reversal.2

In such cases, the error “necessarily render[s] a criminal

trial fundamentally unfair or an unreliable vehicle for

determining guilt or innocence.” Neder, supra, at 9 (em

phasis omitted).

We recently considered whether an error similar to that

which occurred here was structural in Neder, supra.

Neder was charged with mail fraud, in violation of 18

U. S. C. §1341; wire fraud, in violation of §1343; bank

fraud, in violation of §1344; and filing a false income tax

return, in violation of 26 U. S. C. §7206(1). 527 U. S., at 6.

At Neder’s trial, the District Court instructed the jury that

it “ ‘need not consider’ ” the materiality of any false state

ments to convict Neder of the tax offenses or bank fraud,

——————

to him on remand.

2 See Neder v. United States, 527 U. S. 1, 8 (1999) (citing Johnson v.

United States, 520 U. S. 461, 468 (1997), in turn citing Gideon v.

Wainwright, 372 U. S. 335 (1963) (complete denial of counsel); Tumey v.

Ohio, 273 U. S. 510 (1927) (biased trial judge); Vasquez v. Hillery, 474

U. S. 254 (1986) (racial discrimination in selection of grand jury);

McKaskle v. Wiggins, 465 U. S. 168 (1984) (denial of self-representation

at trial); Waller v. Georgia, 467 U. S. 39 (1984) (denial of public trial);

Sullivan v. Louisiana, 508 U. S. 275 (1993) (defective reasonable-doubt

instruction)).

6 WASHINGTON v. RECUENCO

Opinion of the Court

because materiality “ ‘is not a question for the jury to

decide.’ ” Ibid. The court also failed to include materiality

as an element of the offenses of mail fraud and wire fraud.

Ibid. We determined that the District Court erred because

under United States v. Gaudin, 515 U. S. 506 (1995),

materiality is an element of the tax offense that must be

found by the jury. We further determined that materiality

is an element of the mail fraud, wire fraud, and bank

fraud statutes, and thus must be submitted to the jury to

support conviction of those crimes as well. Neder, 527

U. S., at 20. We nonetheless held that harmless-error

analysis applied to these errors, because “an instruction

that omits an element of the offense does not necessarily

render a criminal trial fundamentally unfair or an unreli

able vehicle for determining guilt or innocence.” Id., at 9.

See also Schriro v. Summerlin, 542 U. S. 348, 355–356

(2004) (rejecting the claim that Ring v. Arizona, 536 U. S.

584 (2002), which applied Apprendi to hold that a jury

must find the existence of aggravating factors necessary to

impose the death penalty, was a “ ‘ “watershed rul[e] of

criminal procedure” implicating the fundamental fairness

and accuracy of the criminal proceeding,’ ” in part because

we could not “confidently say that judicial factfinding

seriously diminishes accuracy”).

The State and the United States urge that this case is

indistinguishable from Neder. We agree. Our decision in

Apprendi makes clear that “[a]ny possible distinction

between an ‘element’ of a felony offense and a ‘sentencing

factor’ was unknown to the practice of criminal indict

ment, trial by jury, and judgment by court as it existed

during the years surrounding our Nation’s founding.” 530

U. S., at 478 (footnote omitted). Accordingly, we have

treated sentencing factors, like elements, as facts that

have to be tried to the jury and proved beyond a reason

able doubt. Id., at 483–484. The only difference between

this case and Neder is that in Neder, the prosecution failed

Cite as: 548 U. S. ____ (2006) 7

Opinion of the Court

to prove the element of materiality to the jury beyond a

reasonable doubt, while here the prosecution failed to

prove the sentencing factor of “armed with a firearm” to

the jury beyond a reasonable doubt. Assigning this dis

tinction constitutional significance cannot be reconciled

with our recognition in Apprendi that elements and sen

tencing factors must be treated the same for Sixth Amend

ment purposes.3

Respondent attempts to distinguish Neder on the

ground that, in that case, the jury returned a guilty ver

dict on the offense for which the defendant was sentenced.

Here, in contrast, the jury returned a guilty verdict only

on the offense of assault in the second degree, and an

affirmative answer to the sentencing question whether

respondent was armed with a deadly weapon. Accord

ingly, respondent argues, the trial court’s action in his

case was the equivalent of a directed verdict of guilt on an

offense (assault in the second degree while armed with a

firearm) greater than the one for which the jury convicted

him (assault in the second degree while armed with any

deadly weapon). Rather than asking whether the jury

would have returned the same verdict absent the error, as

in Neder, respondent contends that applying harmless-

error analysis here would “ ‘hypothesize a guilty verdict

that [was] never in fact rendered,’ ” in violation of the jury-

trial guarantee. Brief for Respondent at 27 (quoting Sul

——————

3 Respondent also attempts to evade Neder by characterizing this as a

case of charging error, rather than of judicial factfinding. Brief for

Respondent 16–19. Because the Supreme Court of Washington treated

the error as one of the latter type, we treat it similarly. See 154 Wash.

2d 156, 159–161, 110 P. 3d 188, 189–190 (2005) (considering “whether

imposition of a firearm enhancement without a jury finding that

Recuenco was armed with a firearm beyond a reasonable doubt violated

Recuenco’s Sixth Amendment right to a jury trial as defined by Ap

prendi v. New Jersey, 530 U. S. 466 [(2000)], and its progeny,” and

whether the Apprendi and Blakely error, if uninvited, could “be deemed

harmless”).

8 WASHINGTON v. RECUENCO

Opinion of the Court

livan, 508 U. S., at 279).

We find this distinction unpersuasive. Certainly, in

Neder, the jury purported to have convicted the defendant

of the crimes with which he was charged and for which he

was sentenced. However, the jury was precluded “from

making a finding on the actual element of the offense.”

527 U. S., at 10. Because Neder’s jury did not find him

guilty of each of the elements of the offenses with which he

was charged, its verdict is no more fairly described as a

complete finding of guilt of the crimes for which the defen

dant was sentenced than is the verdict here. See id., at 31

(SCALIA, J., concurring in part and dissenting in part)

(“[S]ince all crimes require proof of more than one element

to establish guilt . . . it follows that trial by jury means

determination by a jury that all elements were proved.

The Court does not contest this”). Put another way, we

concluded that the error in Neder was subject to harmless-

error analysis, even though the District Court there not

only failed to submit the question of materiality to the

jury, but also mistakenly concluded that the jury’s verdict

was a complete verdict of guilt on the charges and imposed

sentence accordingly. Thus, in order to find for respon

dent, we would have to conclude that harmless-error

analysis would apply if Washington had a crime labeled

“assault in the second degree while armed with a firearm,”

and the trial court erroneously instructed the jury that it

was not required to find a deadly weapon or a firearm to

convict, while harmless error does not apply in the present

case. This result defies logic.4

——————

4 The Supreme Court of Washington reached the contrary conclusion

based on language from Sullivan. See Washington v. Hughes, 154

Wash. 2d 118, 144, 110 P. 3d 192, 205 (2005) (“ ‘There being no jury

verdict of guilty-beyond-a-reasonable-doubt, the question whether the

same verdict of guilty-beyond-a-reasonable-doubt would have been

rendered absent the constitutional error is utterly meaningless. There

is no object, so to speak, upon which harmless-error scrutiny can

Cite as: 548 U. S. ____ (2006)

9

Opinion of the Court

* * *

Failure to submit a sentencing factor to the jury, like

failure to submit an element to the jury, is not structural

error. Accordingly, we reverse the judgment of the Su

preme Court of Washington, and remand the case for

further proceedings not inconsistent with this opinion.

It is so ordered.

——————

operate’ ” (quoting Sullivan, 508 U. S., at 279–280)). Here, as in Neder,

“this strand of reasoning in Sullivan does provide support for [respon

dent]’s position.” 527 U. S., at 11. We recognized in Neder, however,

that a broad interpretation of our language from Sullivan is inconsis

tent with our case law. 527 U. S., at 11–15. Because the jury in Neder,

as here, failed to return a complete verdict of guilty beyond a reason

able doubt, our rejection of Neder’s proposed application of the lan

guage from Sullivan compels our rejection of this argument here.

Cite as: 548 U. S. ____ (2006) 1

KENNEDY, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–83

_________________

WASHINGTON, PETITIONER v. ARTURO R.

RECUENCO

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

WASHINGTON

[June 26, 2006]

JUSTICE KENNEDY, concurring.

The opinions for the Court in Apprendi v. New Jersey,

530 U. S. 466 (2000), Blakely v. Washington, 542 U. S. 296

(2004), and their progeny were accompanied by dissents.

The Court does not revisit these cases today, and it de

scribes their holdings accurately. On these premises, the

Court’s analysis is correct. Cf. Ring v. Arizona, 536 U. S.

584, 613 (2002) (KENNEDY, J., concurring). With these

observations I join the Court’s opinion.

Cite as: 548 U. S. ____ (2006) 1

STEVENS, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–83

_________________

WASHINGTON, PETITIONER v. ARTURO R.

RECUENCO

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

WASHINGTON

[June 26, 2006]

JUSTICE STEVENS, dissenting.

Like Brigham City v. Stuart, 547 U. S. ___ (2006), and

Kansas v. Marsh, 548 U. S. ___ (2006), this is a case in

which the Court has granted review in order to make sure

that a State’s highest court has not granted its citizens

any greater protection than the bare minimum required

by the Federal Constitution. Ironically, the issue in this

case is not whether respondent’s federal constitutional

rights were violated—that is admitted—it is whether the

Washington Supreme Court’s chosen remedy for the viola

tion is mandated by federal law. As the discussion in Part

II of the Court’s opinion demonstrates, whether we even

have jurisdiction to decide that question is not entirely

clear. But even if our expansionist post-Michigan v. Long

jurisprudence supports our jurisdiction to review the

decision below, see 463 U. S. 1032 (1983), there was surely

no need to reach out to decide this case. The Washington

Supreme Court can, of course, reinstate the same judg

ment on remand, either for the reasons discussed in Part

II of the Court’s opinion, see ante, at 4, and n. 1, or be

cause that court chooses, as a matter of state law, to ad

here to its view that the proper remedy for Blakely errors,

see Blakely v. Washington, 542 U. S. 296 (2004), is auto

matic reversal of the unconstitutional portion of a defen

dant’s sentence. Moreover, because the Court does not

2 WASHINGTON v. RECUENCO

STEVENS, J., dissenting

address the strongest argument in respondent’s favor—

namely, that Blakely errors are structural because they

deprive criminal defendants of sufficient notice regarding

the charges they must defend against, see ante, at 7,

n. 3—this decision will have a limited impact on other

cases.

As I did in Brigham City and Marsh, I voted to deny

certiorari in this case. Given the Court’s decision to reach

the merits, however, I would affirm for the reasons stated

in JUSTICE GINSBURG’s opinion, which I join.

Cite as: 548 U. S. ____ (2006) 1

GINSBURG, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–83

_________________

WASHINGTON, PETITIONER v. ARTURO R.

RECUENCO

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

WASHINGTON

[June 26, 2006]

JUSTICE GINSBURG, with whom JUSTICE STEVENS joins,

dissenting.

Between trial and sentencing, respondent Arturo Re

cuenco’s prosecutor switched gears. The information

charged Recuenco with assault in the second degree, and

further alleged that at the time of the assault, he was

armed with a deadly weapon. App. 3. Without enhance

ment, the assault charge Recuenco faced carried a sen

tence of 3 to 9 months, id., at 15; Wash. Rev. Code

§§9.94A.510, 9A.36.021(1)(c) (2004); the deadly weapon

enhancement added one mandatory year to that sentence,

§9.94A.533(4)(b).1 The trial judge instructed the jury on

both the assault charge and the deadly weapon enhance

ment. App. 7, 8. In connection with the enhancement, the

judge gave the jurors a special verdict form and instructed

them to answer “Yes or No” to one question only: “Was the

defendant . . . armed with a deadly weapon at the time of

the commission of the crime of Assault in the Second

Degree?” Id., at 13. The jury answered: “Yes.” Ibid.

Because the deadly weapon Recuenco held was in fact a

——————

1 Since Recuenco was charged, some of the relevant statutory provi

sions have been renumbered, without material revision. For conven

ience, we follow the Court’s and the parties’ citation practice and refer

to the current provisions.

2 WASHINGTON v. RECUENCO

GINSBURG, J., dissenting

handgun, the prosecutor might have charged, as an alter

native to the deadly weapon enhancement, that at the

time of the assault, Recuenco was “armed with a firearm.”

That enhancement would have added three mandatory

years to the assault sentence. §9.94A.533(3)(b). The

information charging Recuenco, however, did not allege

the firearm enhancement. The jury received no instruc

tion on it and was given no special verdict form posing the

question: Was the defendant armed with a firearm at the

time of the commission of the crime of Assault in the

Second Degree? See 154 Wash. 2d 156, 160, 110 P. 3d 188,

190 (2005) (“The jury was not asked to, and therefore did

not, return a special verdict that Recuenco committed the

assault while armed with a firearm.”).

The prosecutor not only failed to charge Recuenco with

assault while armed with a firearm and to request a spe

cial verdict tied to the firearm enhancement. He also

informed the court, after the jury’s verdict and in response

to the defendant’s motion to vacate: “The method under

which the state is alleging and the jury found the assaul[t]

committed was by use of a deadly weapon.” App. 35.

Leaving no doubt, the prosecutor further clarified: “[I]n

the crime charged and the enhancement the state alleged,

there is no elemen[t] of a firearm. The element is assault

with a deadly weapon.” Ibid. Recuenco was thus properly

charged, tried, and convicted of second-degree assault

while armed with a deadly weapon. It was a solid case; no

gap was left to fill.

Nevertheless, at sentencing, the prosecutor requested,

and the trial judge imposed, a three-year mandatory

enhancement for use of a firearm. Ibid. Recuenco ob

jected to imposition of the firearm enhancement “without

notice . . . and a jury finding.” 154 Wash. 2d, at 161, 110

P. 3d, at 190. Determining that there was no warrant for

elevation of the charge once the trial was over, the Wash

ington Supreme Court “remand[ed] for resentencing based

Cite as: 548 U. S. ____ (2006) 3

GINSBURG, J., dissenting

solely on the deadly weapon enhancement which is sup

ported by the jury’s special verdict.” Id., at 164, 110 P. 3d,

at 192. I would affirm that judgment. No error marred

the case presented at trial. The prosecutor charged, and

the jury found Recuenco guilty of, a complete and clearly

delineated offense: “assault in the second degree, being

armed with a deadly weapon.” The “harmless-error”

doctrine was not designed to allow dislodgment of that

error-free jury determination.

I

Under Washington law and practice, assault with a

deadly weapon and assault with a firearm are discrete

charges, attended by discrete instructions. As the Court

observes, ante, at 2, a charge of second-degree assault

while armed with a deadly weapon, §9.94A.533(4)(b),

subjects a defendant to an additional year in prison, and a

charge of second-degree assault while armed with a fire

arm, §9.94A.533(3)(b), calls for an additional term of three

years. “Deadly weapon,” Washington law provides, en

compasses any “implement or instrument which has the

capacity to inflict death and from the manner in which it

is used, is likely to produce or may easily and readily

produce death,” including, inter alia, a “pistol, revolver, or

any other firearm.” §9.94A.602. “Firearm” is defined,

more particularly, to mean “a weapon or device from

which a projectile or projectiles may be fired by an explo

sive such as gunpowder.” §9.41.010(1). A handgun (the

weapon Recuenco held), it thus appears, might have been

placed in both categories.2

——————

2 But see App. 38. When the prosecutor, post-trial but presentence,

made it plain that he was seeking the three-year firearm enhancement

rather than the one-year deadly weapon enhancement, Recuenco

objected that the statutory definition of “firearm” had not been read to

the jury, and that the prosecutor had submitted no evidence showing

that Recuenco’s handgun was “designed to fire a projectile by explosive

4 WASHINGTON v. RECUENCO

GINSBURG, J., dissenting

Washington Pattern Jury Instructions, Criminal (WPIC)

(West 2005 Supp.), set out three instructions for cases in

which “an enhanced sentence is sought on the basis that

the defendant was armed with a ‘deadly weapon,’ ” WPIC

§2.06 (note on use): Deadly Weapon–General, §2.07;

Deadly Weapon–Knife, §2.07.01; Deadly Weapon–Firearm,

§2.07.02. When the prosecutor seeks an enhancement

based on the charge that “the defendant was armed with a

‘firearm,’ ” §2.06, trial courts are directed to a different

instruction, one keyed to the elevated enhancement,

§2.10.01.

Matching special verdict forms for trial-court use are

also framed in the WPIC. When a “deadly weapon” charge

is made, whether generally or with a knife or firearm, the

prescribed form asks the jury: “Was the defendant (defen

dant’s name) armed with a deadly weapon at the time of

the commission of the crime [in Count __]?” §190.01.

When a “firearm” charge is made, the jury is asked: “Was

the defendant (defendant’s name) armed with a firearm at

the time of the commission of the crime [in Count __]?”

§190.02.

In Recuenco’s case, the jury was instructed, in line with

the “deadly weapon” charge made by the prosecutor, App.

6–7, and the special verdict form given to the jury

matched that instruction. The form read:

“We, the jury, return a special verdict by answering

as follows:

“Was the defendant ARTURO R. RECUENCO

armed with a deadly weapon at the time of the com

mission of the crime of Assault in the Second Degree?

“ANSWER: [YES] (Yes or No).” Id., at 13.

No “firearm” instruction, WPIC §2.10.01 (West 2005

——————

such as gunpowder.” Ibid.

Cite as: 548 U. S. ____ (2006) 5

GINSBURG, J., dissenting

Supp.), was given to Recuenco’s jury, nor was the jury

given the special verdict form matching that instruction,

§190.02; see supra, at 3–4, n. 2.

II

In the Court’s view, “this case is indistinguishable from

Neder [v. United States, 527 U. S. 1 (1999)].” Ante, at 6.

In that case, the trial judge made a finding necessary to

fill a gap in an incomplete jury verdict. One of the of

fenses involved was tax fraud; the element missing from

the jury’s instruction was the materiality of the defen

dant’s alleged misstatements. Under the mistaken im

pression that materiality was a question reserved for the

court, the trial judge made the finding himself. In fact in

Neder, materiality was not in dispute. See 527 U. S., at 7;

see also id., at 15 (Neder “d[id] not suggest that he would

introduce any evidence bearing upon the issue of material

ity if so allowed.”). “Reversal without any consideration of

the effect of the error upon the verdict would [have] sen[t]

the case back for retrial—a retrial not focused at all on the

issue of materiality, but on contested issues on which the

jury [had been] properly instructed.” Ibid. The Court

concluded that the Sixth Amendment did not command

that recycling.

Here, in contrast to Neder, the charge, jury instructions,

and special verdict contained no omissions; they set out

completely all ingredients of the crime of second-degree

assault with a deadly weapon. There is no occasion for

any retrial, and no cause to displace the jury’s entirely

complete verdict with, in essence, a conviction on an un

charged greater offense.

III

The standard form judgment completed and signed by

the trial judge in this case included the following segment:

“SPECIAL VERDICT OR FINDING(S):

6 WASHINGTON v. RECUENCO

GINSBURG, J., dissenting

“(b) [ ] A special verdict/finding for being armed with

a Firearm was rendered on Count(s) ___.

“(c) [X] A special verdict/finding for being armed with

a Deadly Weapon other than a firearm was rendered

on Count(s) I.” App. 14.

Count I was identified on the judgment form as

“ASSAULT IN THE 2ND DEGREE.” Ibid. Despite the

“X” placed next to the “Deadly Weapon” special ver

dict/finding, and the blanks left unfilled in the “Firearm”

special verdict/finding lines, the trial judge imposed a

sentence of 39 months (3 months for the assault, 36

months as the enhancement).

Had the prosecutor alternatively charged both en

hancements, and had the judge accurately and adequately

instructed on both, giving the jury a special verdict form

on each of the two enhancements, the jury would have had

the prerogative to choose the lower enhancement. Specifi

cally, the jury could have answered “Yes” (as it in fact did,

see supra, at 4) to the “armed with a deadly weapon”

inquiry while returning no response to the alternative

“firearm” inquiry. See, supra, at 3, and n. 2 (Washington’s

statutory definition of “deadly weapon” overlaps definition

of “firearm”); cf. United States v. Martin Linen Supply Co.,

430 U. S. 564, 573 (1977) (“[R]egardless of how overwhelm

ingly the evidence may point in that direction[, t]he trial

judge is . . . barred from attempting to override or inter

fere with the jurors’ independent judgment in a manner

contrary to the interests of the accused.”). Today’s deci

sion, advancing a greater excluded (from jury control)

offense notion, diminishes the jury’s historic capacity “to

prevent the punishment from getting too far out of line

with the crime.” United States v. Maybury, 274 F. 2d 899,

902 (CA2 1960) (Friendly, J.); see also Blakely v. Washing

ton, 542 U. S. 296, 306 (2004) (recognizing jury’s role “as

circuitbreaker in the State’s machinery of justice”).

Cite as: 548 U. S. ____ (2006) 7

GINSBURG, J., dissenting

* * *

In sum, Recuenco, charged with one crime (assault with

a deadly weapon), was convicted of another (assault with a

firearm), sans charge, jury instruction, or jury verdict.

That disposition, I would hold, is incompatible with the

Fifth and Sixth Amendments, made applicable to the

States by the Fourteenth Amendment. I would therefore

affirm the judgment of the Supreme Court of the State of

Washington.