Petitioners Brief — Washington v. Recuenco

No. 05-83 ro 1h 2005

OFFICE OF THE CLERK

| SUPREME COURT. U.S.

IN THE

Supreme Court of the United States

STATE OF WASHINGTON,

Petitioner,

Vv.

ARTURO R. RECUENCO,

Respondent.

On Writ of Certiorari to the

Supreme Court of the State of Washington

BRIEF FOR PETITIONER

NORM MALENG

King County Prosecuting Attorney

JAMES M. WHISMAN *

Senior Deputy Prosecuting Attorney

BRIAN M. MCDONALD

Senior Deputy Prosecuting Attorney

W554 King County Courthouse

516 Third Avenue

Seattle, Washington 98104

(206) 296-9650

* Counsel of Record Counsel for Petitioner

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether error as to the definition of a sentencing en-

hancement, which results in a violation of Apprendi v. New

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

U.S. 296 (2004), is subject to harmless error analysis.

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TABLE OF CONTENTS

Page

TABLE OF AUTHIORIT IES .0.cccsscccescovcccesscsssescvosecsooss iv

SD GUN F : sorianeccnnnhossencvotcsinovecgunerernioceectmeeseee l

FE BITE srcsisevtecimsintsiersininnisinerenitiinniaaniiatuiagiiebie l

CONSTITUTIONAL AND STATUTORY

FE PIT O vcteecinenvinstnavsnsitinermapnatetbeenenenineonasiieniets 2

TINE ccnkoasisseibimminadtnensicieiaiishesionvbtiesieanertbsatiesie 3

SUMMARY OF ARGUMENT ...........:ccsccsssesseseseseseenes 8

FED ccovicosovs biidsnebeiceabssnestennpsinsectaoiecant idsaindie 10

I. BECAUSE SENTENCING ENHANCE-

MENTS ARE THE FUNCTIONAL EQUIV-

ALENT OF ELEMENTS OF THE OFFENSE,

ERRONEOUS JURY INSTRUCTIONS ON

ENHANCEMENTS ARE SUBJECT TO THE

SAME CHAPMANNEDER HARMLESS

ERROR REVIEW THAT APPLIES TO

FLAWED INSTRUCTIONS ON ELEMENTS... i]

Il. THE WASHINGTON SUPREME COURT

ERRONEOUSLY RELIED ON SULLIVAN

V. LOUISIANA TO CONCLUDE THAT

STRUCTURAL ERROR OCCURS WHEN-

EVER A JUDGE DECIDES A SENTENC-

ING ENHANCEMENT RESERVED FOR A

PAIRS -ciseciceentnsinisitiinelbsennatvinagenisietapuinbinsdohettiousie 20

Ill. CHAPMAN/NEDER HARMLESS ERROR

ANALYSIS IS FAIRLY APPLIED BY

BOTH FEDERAL AND STATE APPEL-

LATE COURTS; A DIFFERENT RULE

WOULD NOT FURTHER JUSTICE AND

COULD DISPROPORTIONATELY AFFECT

STATE CONVICTIONS ...0.cecsccscosseprovsccesocscseee 24

SPU aALPIOTY dvirsdstccilactibnddatb ethan tnvevictinbnicsidceniasmvnsisles 27

iv

TABLE OF AUTHORITIES

CASES Page

Apprendi v. New Jersey, 530 U.S. 466 (2000) ...... passim

Arizona v. Fulminante, 499 U.S. 279 (1991)......... 14, 21

Blakely v. Washington, 542 U.S. 296 (2004)......... 7,19

Brecht v. Abrahamson, 507 U.S. 619 (1993)......... 21

Brown v. United States, 411 U.S. 223 (1973)........ 13

California v. Roy, 519 U.S. 2 (1996)........... 12, 16, 18, 20

Carella v. California, 491 U.S. 263 (1989)...12, 16, 18, 20

Chambers v. Maroney, 399 U.S. 42 (1970)........... 13

Chapman v. California, 386 U.S. 18 (1967) ......... passim

Clemons v. Mississippi, 494 U.S. 738 (1990)........ 12

Coleman v. Alabama, 399 U.S. 1 (1970)............... 13

Crane v. Kentucky, 476 U.S. 683 (1986)............... 12

Delaware v. Van Arsdall, 475 U.S. 673 (1986)..... 13, 14

Esparza v. Mitchell, 310 F.3d 414 (6th Cir. 2002).. 17, 20

Gideon v. Wainwright, 372 U.S. 335 (1963)......... 21

Griffin v. California , 380 U.S. 609 (1965)............ 12

Harrington v. California, 395 U.S. 250 (1969)..... 13

In re Taylor, 95 Wash.2d 940, 632 P.2d 56

CGE )ivisctonticssivociendetpinatidiestnabissiunljeabonibiuessnentauelias 18

Johnson v. United States, 520 U.S. 461 (1997)..... passim

Kotteakos v. United States,.328 U.S. 750 (1946) .. 12

McKaskle v. Wiggins, 465 U.S. 168 (1984)........... 21

Milton v. Wainwright, 407 U.S. 371 (1972) .......... 13

Mitchell v. Esparza, 540 U.S. 12 (2003) ............0. passim

Moore v. Illinois, 434 U.S. 220 (1977)...........c:0008 13

Neder v. United States, 527 U.S. 1 (1999) .........4.. passim

Pope v. Illinois, 481 U.S. 497 (1987) .......... 12, 16, 18, 20

Ring v. Arizona, 536 U.S. 534 (2002) .............c000 19

Rose v. Clark, 478 U.S. 570 (1986) ..........:.ccccc000 passim

Rushen v. Spain, 464 U.S. 114 (1983) .......cccceseees 13

Satterwhite v. Texas, 486 U.S. 249 (1988) ............ 12

State v. Allen, 359 N.C. 425, 615 S.E.2d 256

Vv

TABLE OF AUTHORITIES—Continued

Page

State v. Belmarez, 101 Wash.2d 212, 676 P.2d

Re inciiidishesints nadctagiasidhionincdcitsidaiainvegatnabdanines 18

State v. Brown, 147 Wash.2d 330, 58 P.3d

SI iciinaihcclininsdishatinaiapaittipicndindiiakbddanekieinsdntnadanues 18

State v. Cook, 69 Wash. App. 412, 848 P.2d 1325

Inviiidhtetisahde lcsindbsdceesiliniab tenssednidenseinemeteentesevonienian 19

State v. Courtemarch, 11 Wash. 446, 39 P. 955

a a erenmnaines 18

State v. Hall, 95 Wash.2d 536, 627 P.2d 101

Si iasiinhddinatcdinbdieaptinahenibeiiodiassnbalbhtanseeiednssieians 19

State v. Hughes, 154 Wash.2d 118, 110 P.3d 192

(RESET ASERSae on Aare eee ae 7,18

State v. Meggyesy, 90 Wash. App. 693, 958 P.2d

319, review denied, 136 Wash.2d 1028, 972

I i dni hatin naan cinenletenpioneiaion 6

State v. Mills, 154 Wash.2d 1, 109 P.3d 415

EE TRESS SDS at CNR Ce ee 25

State v. Mode, 57 Wash.2d 829, 360 P.2d 159

Ie strctenachi eka thichiahclaheh ianiuipinindianiabeipdinevadlaticaneniete 19

State v. Recuenco, 154 Wash.2d 156, 110 P.3d

188 (2005)......... sh cheaitiplnenianlaeddiacehilatipinnaamerinantinies 1, 6, 7, 25

Sullivan v. Louisiana, 508 U.S. 275 (1993)........... passim

Tumey v. Ohio, 273 U.S. 510 (1927) ..........ccccceeeeee 21

United States v. Casas, 425 F.3d 23 (lst Cir.

a i canis 24

United States v. Cotton, 535 U.S. 625 (2002) ....... 23

United States v. Gaudin, 515 U.S. 506 (1995) ...... 16

United States v. Hasting, 461 U.S. 499 (1983)...... 13

United States v. Meyer, 427 F.3d 558 (8th Cir.

RRS AR Soke EN Cy Deer 25

United States v. Olano, 507 U.S. 725 (1993) ........ 23

United States v. Olis, No. 04-20322, 2005 WL

2842077 (Sth Cir. filed Oct. 31, 2005) ..............

vi

TABLE OF AUTHORITIES—Continued

Page

United States v. Small, 423 F.3d 1164 (10th Cir.

UTE octtyshiksinsiiabinieniclbandedciednandbihaptiaslenendiniuauindenies 25

Vasquez v. Hillery, 474 U.S. 254 (1986) ............... 21

Waller v. Georgia, 467 U.S. 39 (1984) ........c0008 21

Yates v. Evatt, 500 U.S. 391 (1991)... 12, 16, 20

CONSTITUTIONAL AND STATUTORY

PROVISIONS

I: GI i cecticcndinmitionitdocienaintsiapain 2,10

So RN TINIE, TIDY ceciantchietoicniichepeabsinpescnntnisiaie 2

1995 Washington Laws, ch. 129, § 1.0.0.0... 4

i tt TIED Uitiidpesteirichtnaderintilentenntadietaliniedenkde l

SO es Oe AE ciaidiindetinconensiictennindsicceniadects 18

Former Wash. Rev. Code § 9A.04.110(6).............. 4

Former Wash. Rev. Code § 9.94A.125................. 2, 4, 6

Former Wash. Rev. Code § 9.94A.310.................. 2,4

Wash. Rev. Code § 9A.36.021 oo.....ccccccseceeeeeees 4

OTHER AUTHORITIES

5 W. LaFave et al., Criminal Procedure,

Be IN GIT btcettictencindnsstsinboncinnnsacnimnsians 1]

Be 8 YS RESET eee eee eee 23

O. Holmes, The Common Law (1881) .................. 23

R. Traynor, The Riddle of Harmless Error,

[Epeee ori cidsininieuthstcntannsthienialnandntinstdsotetsinnbiundeiedbinesiie 11, 12, 15

IN THE

Supreme Court of the Anited States

No. 05-83

STATE OF WASHINGTON,

Petitioner,

v.

ARTURO R. RECUENCO,

Respondent.

On Writ of Certiorari to the

Supreme Court of the State of Washington

BRIEF FOR PETITIONER

OPINIONS BELOW

The opinion of the Washington Supreme Court is reported

at State v. Recuenco, 154 Wash.2d 156, 110 P.3d 188 (Apr.

14, 2005). Pet. App. la.' The Court of Appeals’ decision in

this case is unpublished, 117 Wash.App. 1079, 2003 WL

21738927 (Wash.App. July 28, 2003). Pet. App. 9a.

JURISDICTION

The Washington Supreme Court’s judgment was entered

on April 14, 2005. The petition for writ of certiorari was filed

on July 13, 2005, and was granted on October 17, 2005. This

Court has jurisdiction under 28 U.S.C. § 1257(a).

' “Pet. App.” refers to the appendix to the petition for a writ of certiorari.

2

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Sixth Amendment to the Constitution provides in

relevant part: “In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall have

The Fourteenth Amendment to the Constitution provides in

relevant part: “nor shall any State deprive any person of life,

liberty, or property, without due process of law. .. .”

Former Wash. Rev. Code § 9.94A.125 provides in relevant

part: “In a criminal case wherein there has been a special

allegation and evidence establishing that the accused or an

accomplice was armed with a deadly weapon at the time of

the commission of the crime, . . . if a jury trial is had, the jury

shall, if it find[s] the defendant guilty, also find a special

verdict as to whether or not the defendant or an accomplice

was armed with a deadly weapon at the time of the com-

mission of the crime. For purposes of this section, a deadly

weapon is an 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.

The following instruments are included in the term deadly

weapon: Blackjack, sling shot, billy, sand club, sandbag,

metal knuckles, any dirk, dagger, pistol, revolver, or any

Former Wash. Rev. Code § 9.94A.310 provides in perti-

nent part: “(3) The following additional times shall be added

to the presumptive sentence . . . if the offender or an ac-

complice was armed with a firearm. .. Three years for any

felony defined under any law as a class B felony. ... (4) The

following additional times shall be added to the presumptive

sentence .. . if the offender or an accomplice was armed with

a deadly weapon as defined in this chapter other than a

3

firearm. . . One year for any felony defined under any law as

a class B felony... .”

STATEMENT

1. On September 18, 1999, Ms. Amy Recuenco and the

defendant, Arturo Recuenco, were at home with their chil-

dren. The defendant told Ms. Recuenco to cook dinner for

his sisters, who were scheduled to arrive that evening. Tr.

6:486. The defendant became enraged when he later

discovered that Ms. Recuenco had not prepared the meal, and

he picked up a metal pipe and hit the stove, smashing it. Tr.

6:488. The defendant then walked into the living room,

reached into a file cabinet, and removed his gun. Tr. 6:491.

He pointed the gun at Ms. Recuenco with both hands and

continued to yell at her. Tr. 6:491. Ms. Recuenco picked up

the telephone and dialed 911. Tr. 6:493. The defendant put

the gun back in the drawer and yanked the telephone cord

from the wall just after the call had gone through to the 911

call center. Tr. 5:244, 6:495. Ms. Recuenco fled to her

room. Tr. 6:497.

Two Seattle Police Department officers arrived. Tr. 5:228-

31. They immediately heard Ms. Recuenco shout from in-

side that the defendant had a gun and was going to kill her.

Tr. 5:233. After speaking privately with Ms. Recuenco, an

officer retrieved the defendant’s gun—a .380 caliber, semi-

automatic pistol with a full magazine but without a round in

the chamber. Tr. 5:233-39. After he was arrested, the

defendant admitted to the police that he had held the gun

during the altercation with his wife, but he denied pointing it

at her, insisting that she could not have seen it. Tr. 5:242-43.

2. The State of Washington charged the defendant by

amended information with assault in the second degree,

interfering with domestic violence reporting, and malicious

mischief in the third degree. J.A. 3-4. The crime of second

degree assault has six alternative means of committing the

4

crime, but the State of Washington alleged only one: that the

assault was committed “with a deadly weapon.” J.A. 3

(citing Wash. Rev. Code § 9A.36.021). The definition of

“deadly weapon” under this statute includes a firearm. Wash.

Rev. Code § 9A.04.110(6).

The State of Washington also charged a sentencing en-

hancement—that at the time of the crime the defendant was

“armed with a deadly weapon, to wit: a handgun.” J.A. 3.

Under Washington law, a deadly weapon for purposes of a

sentencing enhancement was defined as “any dirk, dagger,

pistol, revolver, or any other firearm ....” Former Wash.

Rev. Code § 9.944.125 (emphasis added). A three-year

sentence enhancement applied if the offender or an accom-

plice was armed with a firearm, Former Wash. Rev. Code

§ 9.94A.310(3)(b), whereas a one-year enhancement applied

if the offender was armed with a deadly weapon “other than a

firearm.” Former Wash. Rev. Code § 9.94A.310(4)(b).”

3. At trial, the defendant testified that he damaged the

stovetop with a kettle because he was angry that his wife

would not cook dinner. Tr. 7:634. He testified that his wife

began to call the police after he damaged the stove, and that

he attempted to take the phone from her. Tr. 7:639-40. He

claimed that, in reaching for the receiver, he unintentionally

grabbed the cord, accidentally pulling it from the wail. Tr.

7:640. He admitted that the gun was in his hand that night,

but he denied that he pointed it at his wife. Tr. 8:709, 725-27.

? The increased penalty when the “deadly weapon” is a firearm was the

product of an initiative passed by the citizens of Washington and ap-

proved by the Legislature. 1995 Washington Laws, ch. 129. One of the

stated purposes of this enhancement was to “(distinguish between the

gun predators and criminals carrying other deadly weapons and pro-

vide greatly increased penalties for gun predators and for those offen-

ders committing crimes to acquire firearms.” 1995 Washington Laws, ch.

129, § 1.

5

Throughout the trial, there was no dispute that the only

weapon involved was the firearm. Pet. App. 18a. After the

evidence was received, the court and counsel discussed jury

instructions, including how to define the term “deadly

weapon” for purposes of the elements instruction on the

charge of second degree assault, as well as for purposes of the

sentence enhancement. The trial court observed: “Counsel,

quite frankly there is no dispute in this case that we are

talking about a gun... .” J.A. 16. Defense counsel did not

disagree; instead, he argued that the definition of “deadly

weapon” should include the manner in which the firearm was

used. J.A. 17-20. The court noted counsel’s objection to the

definition of the term “firearm,” but ruled that “.. . if the

only weapon involved is a firearm . . . the simplified defi-

nition of deadly weapon should be used . . . And indeed the

Court is giving only the more simplified version, since no

other weapons are the subject of this trial other than a

firearm.” J.A. 25. |

For the crime of second degree assault, the Court instructed

the jury that “[t]he term ‘deadly weapon’ includes any fire-

arm, whether loaded or not.” J.A. 7. With respect to the

“deadly weapon” special verdict instruction, the court in-

structed that “[a] pistol, revolver, or any other firearm is a

deadly weapon whether loaded or unloaded.” J.A. 8. The

Court also adopted defense counsel’s proposed special verdict

form, which provided:

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 commis-

sion of the crime of Assault in the Second Degree?

ANSWER: (Yes or No).

J.A. 13. In closing arguments, the prosecutor and defense

counsel repeatedly referred to the firearm as the only weapon

at issue in the assault charge. See, e.g., Tr. 9:838 (defense).

6

A jury convicted the defendant on all charged counts and

returned a special verdict finding that he had committed the

assault while armed with a deadly weapon. J.A. 10-13.

Although defense counsel acknowledged that “. . . the

allegation and the basis on which this case was tried was

under the theory of firearm. . . ,” J.A. 30, and that “the

firearm is a{n] element of this offense as it has been pleaded

and argued to the jury and evidently, perhaps obviously,

proven to the jury,” J.A. 37, he argued that the court should

only apply the one-year sentencing enhancement for deadly

weapons other than firearms. J.A. 43. The trial court rejected

this argument and sentenced Recuenco using the three-year

enhancement based on the court’s finding that the defendant

had unquestionably been armed with a firearm.’ J.A. 47.

4. The defendant appealed, arguing inter alia, that the trial

court erred by imposing a three-year firearm enhancement

when the jury had been asked to make only a general “deadly

weapon” finding. His appeal was rejected by the Washington

Court of Appeals, which found that any error in the special

verdict form was harmless beyond a reasonable doubt. Pet.

App. 17a-19a. The Court of Appeals observed:

. . . The only weapon mentioned or charged in connec-

tion with the assault here was a firearm. The information

specified that the deadly weapon Recuenco used in the

> The trial court’s decision to apply the three-year enhancement was

consistent with Washington law. The “deadly weapon” enhancement

statute provided that a defendant ha the right to have a jury find whether

he was armed with a deadly weapon, but clid not expressly require that the

jury find the exact type of deadly weapor involved. Former Wash. Rev.

Code § 9.944.125. At the time of Recuenco's trial, Washington courts

had held that it was permissible for a trial court to make the finding that

the deadly weapon was a firearm at sentencing when determining the

length of the sentencing enhancement. State v. Meggyesy, 90 Wash. App.

693, 707-09, 958 P.2d 319, review denied, 136 Wash.2d 1028, 972 P.2d

465 (1998), abrogated by State v. Recuenco, 154 Wash.2d 156, 110 P.3d

188 (2005).

7

assault was a handgun, a firearm. The prosecution ar-

gued to the jury that Recuenco committed the assault

with a firearm. Jury instructions specified that a firearm

constituted a deadly weapon. The jury then specifically

found that Recuenco had committed the assault using a

deadly weapon. No other weapon was mentioned. Any

constitutional error was harmless because it is clear

beyond a reasorable doubt that the jury’s verdict was not

affected by the error.

Pet. App. 18a -19a.

The Washington Supreme Court reversed the Court of

Appeals and vacated the sentence. The court held that, under

Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v.

Washington, 542 U.S. 296 (2004), an error in permitting a

judge to make a decision reserved for the jury is per se

reversible. The Washington Supreme Court’s decision on

this issue in State v. Recuenco was short, see Pet. App. 8a,

because the court’s reasoning was explained in State v.

Hughes, 154 Wash.2d 118, 110 P.3d 192 (2005), decided the

same day. See Pet. App. 20a-27a. The holdings in Hughes

and Recuenco were based upon language in Sullivan v.

Louisiana, 508 U.S. 275 (1993): “[{T]o hypothesize a guilty

verdict that was never in fact rendered—no matter how

inescapable the findings to support that verdict might be—

would violate the jury-trial guarantee.” Hughes, 154 Wash.

2d at 144. The Washington Supreme Court held that if a

judge decides a sentencing enhancement factual issue re-

served for the jury, the error is “structural” and, thus, always

reversible, regardless of whether it can be said beyond a

reasonable doubt that the instructional error did not deprive

the defendant of a fair trial. Jd. The court did not reject

Neder v. United States, 527 U.S. 1 (1999). Rather, the court

held that harmless error analysis was possible as to erroneous

elements, but not sentencing enhancements. /d. at 148 n.12.

The State of Washington timely petitioned this Court for a

writ of certiorari, and that petition was granted on October 17,

2005. :

SUMMARY OF THE ARGUMENT

1. This Court has consistently recognized that criminal

convictions should be affirmed where the errors at trial,

constitutional or otherwise, clearly did not affect the jury’s

verdict. Chapman v. California, 386 U.S. 18 (1967). Harm-

less error analysis promotes fundamental fairness in criminal

proceedings by helping to ensure that criminal cases are

decided on the merits and not on the basis of defects that have

no bearing on guilt or innocence. This Court has held

unequivocally that jury instructions which omit or misdefine

a single element of a criminal offense can be harmless error.

Neder v. United States, 527 U.S. 1 (1999). Applying the

same reasoning, this Court also has held that instructional

error as to a death penalty aggravator is subject to harmless

error analysis even when the aggravator has not been

expressly alleged or proven. Mitchell v. Esparza, 540 U.S. 12

(2003). These decisions are well-supported by the history of

harmless error analysis, by this Court’s numerous harmless

error decisions, and by concerns that needless retrials neither

protect constitutional rights nor engender respect for the

judicial system.

The Washington Supreme Court held that, although an

erroneous jury instruction omitting an element of the crime is

subject to harmless error review, the same error with respect

to a sentencing enhancement is not subject to harmless error

review. This decision conflicts with Neder and Esparza,

which illustrate that, for purposes of determining whether

harmless error is available, there is no material difference

between elements of the offense and sentencing enhance-

ments. Imprecise instructions or verdict forms relating to a

sentencing enhancement are subject to the same harmless

error analysis that applies to errors setting forth the elements

9

of the crime; there is no reason for a more restrictive appel-

late review as to aggravating sentencing factors. Thus, Neder

amd Esparza clearly established the principle that harmless

error analysis is appropriate as to an incomplete jury verdict,

regardless of whether the gap in the verdict was caused by

error in an element or a sentencing enhancement instruction.

This case calls for a simple application of Neder and Esparza.

2. The Washington Supreme Court also erred by relying

on a thread of reasoning from Sullivan v. Louisiana, 508 U.S.

275 (1993) to hold that structural error occurs whenever a

judge decides any sentencing fact that should have been

decided by a jury, and that such error can never be harmless.

Structural errors are rare, and are categorically distinct from

other constitutional errors. Such errors occur only where a

defect affects the entire framework within which the trial

proceeds, rather than simply an error in the trial process itself.

Structural errors are inscrutable, unquantifiable, and inde-

terminate, and must necessarily render a trial fundamentally

unfair. An error in a sentencing enhancement instruction

which leads to a single gap in a jury’s verdict is not within the

natrow category of structural errors, because it does not infect

the entire framework of the trial nor necessarily render the

trial fundamentally unfair. The error here is identical to the

errors in Neder and Esparza—errors that admittedly resulted

in a verdict that did not encompass a single element or

sentencing factor, but where it is still possible to determine

beyond a reasonable doubt that the error did not affect the

verdict.

3. Finally, there is no reason to question the soundness or

the fairness of the constitutional harmless error rule estab-

lished in Chapman, and applied in Neder and Esparza. The

harmless beyond-a-reasonable-doubt standard is demanding,

and requires the appellate court to reverse a conviction unless

it can be established beyond a reasonable doubt—the highest

burden of proof—that the error did not affect the verdict. The

10

rule permits a court to affirm the conviction where the inac-

curate jury instructions did not truly deprive the defendant of

a fair trial. A rule that precludes harmless error analysis of

such errors would result in numerous retrials or bars to

prosecution where the defendant’s guilt is not in question.

Moreover, such a rule would affect state court jury verdicts

more frequently than federal jury verdicts because states like

Washington do not routinely preclude appellate review of

errors in jury instructions, even when there is no objection

at trial.

The jury in this case found that the defendant was armed

with a deadly weapon when he assaulted his wife. The only

weapon alleged, argued, or supported by the testimony was a

firearm, and the term “deadly weapon” was defined in the

instructions as “any firearm.” Recuenco even admitted to

possessing the firearm. Since this case was tried before

Apprendi v. New Jersey, 530 U.S. 466 (2000), neither the trial

court nor the prosecutor realized that the judge’s finding that

Recuenco was armed with a firearm infringed on his Sixth

Amendment right to trial by jury. Given the undisputed fact

that a firearm was the only deadly weapon alleged, the trial

court properly imposed the three-year firearm enhancement

as required by law. The error in the jury instructions was

harmless beyond a reasonable doubt.

ARGUMENT

The Washington Supreme Court’s decision in this case is

erroneous because it creates two rules for evaluating the

effect of trial error: one rule that permits harmless error

review of jury instructions with faulty or missing elements,

and a second rule that requires automatic reversal for jury

instructions that erroneously define a sentencing enhance-

ment. Sentencing enhancements are functionally equivalent

to elements under the Sixth Amendment’s right to jury trial,

so there is no basis for two different standards.

11

The Washington Supreme Court’s error stemmed from two

related mistakes. First, the Washington Supreme Court failed

to recognize that this Court has authorized harmless error

review of incomplete verdicts, regardless of whether the

incomplete verdict was caused by the erroneous definition of

an element or a sentencing enhancement. Thus, the Wash-

ington Supreme Court’s decision conflicts with, at a mini-

mum, this Court’s decisions in Neder v. United States, 527

U.S. 1 (1999) and Mitchell v. Esparza, 540 U.S. 12 (2003).

Second, the Washington Supreme Court failed to recognize

that its “structural error” holding rested on language in

Sullivan v. Louisiana that has been expressly disavowed by

this Court. The error here was not structural.

I. BECAUSE SENTENCING ENHANCEMENTS

ARE THE FUNCTIONAL EQUIVALENT OF

ELEMENTS OF THE OFFENSE, ERRONEOUS

JURY INSTRUCTIONS ON ENHANCEMENTS

ARE SUBJECT TO THE SAME CHAPMAN/

NEDER HARMLESS ERROR REVIEW THAT

APPLIES TO FLAWED INSTRUCTIONS ON

ELEMENTS.

The practice of reviewing error in order to determine

whether it was harmless has roots in English jurisprudence of

the 19th century. R. Traynor, The Riddle of Harmless Error

4-13 (1970) (hereinafter “Harmless Error”); 5 W. LaFave et

al., Criminal Procedure § 27.6(a), at 933 (2nd ed. 1999).

American courts were somewhat slow to adopt the concept

and ultimately came under heavy and protracted criticism for

reversing convictions based upon seemingly insignificant

errors. Traynor, Harmless Error, supra, at 13-14; 5 LaFave

et al. supra, § 27.6(a), at 933-34. Eventually, “out of wide-

spread and deep conviction over the general course of

appellate review in American criminal causes[,]” both the

federal government and each state adopted some form of

statutory harmless-error rule by the mid-1960s. Chapman v.

12

California, 386 U.S. 18, 22 (1967); Kotteakos v. United

States, 328 U.S. 750, 759 (1946); Traynor, Harmless Error,

supra, at 13-14.

In the 1960s, as this Court expanded the reach of the federal

constitution into state criminal processes, the Court had

increasing Occasion to address harmless error in the context of

constitutional error. In Chapman, the Court held that a federal

constitutional error could be harmless, provided an appellate

court could “declare a belief that [the error] was harmless

beyond a reasonable doubt.” Chapman, 386 U.S. at 24.‘

Over the past four decades, this Court has found a wide

variety of constitutional errors subject to harmless error

analysis. See, e.g., California v. Roy, 519 U.S. 2, 4-6 (1996)

(error in jury instructions defining element of crime); Yates

v. Evatt, 500 U.S. 391, 402-06 (1991) (unconstitutional

burden-shifting malice instruction); Clemons v. Mississippi,

494 U.S. 738, 752-54 (1990) (unconstitutionally overbroad

jury instructions at the sentencing stage of a capital case);

Carella v. California, 491 U.S. 263, 266 (1989) (jury instruc-

tion containing an erroneous conclusive presumption); Sat-

terwhite v. Texas, 486 U.S. 249, 257-58 (1988) (admission of

evidence at the sentencing stage of a capital case in violation

of the Sixth Amendment Counsel Clause); Pope v. Illinois,

481 U.S. 497, 501-04 (1987) (jury instruction misstating an

element of the offense); Rose v. Clark, 478 U.S. 570, 579

(1986) (jury instruction containing an erroneous rebuttable

presumption); Crane v. Kentucky, 476 U.S. 683, 691 (1986)

(erroneous exclusion of defendant’s testimony regarding the

ta

* The Chapman case is an example of how the expanding reach of the

federal constitution into the state criminal process speeded the devel-

opment of harmless error jurisprudence. In Chapman, the error at issue,

an instruction and comment on the defendant's failure to testify, was

authorized under the California constitution and had only recently been

recognized as federal constitutional error. See Griffin v. California, 380

U.S. 609 (1965).

13

circumstances of his confession); Delaware v. Van Arsdall,

475 U.S. 673, 684 (1986) (failure to permit cross-examination

concerning witness bias); Rushen v. Spain, 464 U.S. 114,

117-20 (1983) (denial of right to be present at critical stage of

proceedings); United States v. Hasting, 461 U.S. 499, 508-09

(1983) (improper comment on defendant’s failure to testify);

Moore vy. Illinois, 434 U.S. 220, 232 (1977) (admission of

witness identification obtained in violation of right to coun-

sel); Brown v. United States, 411 U.S. 223, 231-32 (1973)

(admission of the out-of-court statement of a non-testifying

codefendant in violation of the Sixth Amendment Counsel

Clause); Milton v. Wainwright, 407 U.S. 371, 372-78 (1972)

(admission of confession obtained in violation of right to

counsel); Chambers v. Maroney, 399 U.S. 42, 52-53 (1970)

(admission of evidence obtained in violation of the Fourth

Amendment); Coleman v. Alabama, 399 U.S. 1, 10-11 (1970)

(denial of counsel at a preliminary hearing in violation of

the Sixth Amendment Confrontation Clause); Harrington v.

California, 395 U.S. 250, 252-54 (1969) (denial of Sixth

Amendment right to confront witnesses); Chapman, 386 U.S.

at 24-25 (comment on the right against self-incrimination).

The Court has recognized that “while there are some errors

to which Chapman does not apply, they are the exception and

not the rule.” Rose, 478 U.S. at 578. In Rose, this Court

reversed a lower court’s refusal to engage in harmless error

analysis, and explained why harmless error analysis was

entirely consistent with the constitutional protections found to

have been violated in such cases.

The thrust of the many constitutional rules governing the

conduct of criminal trials is to ensure that those trials

lead to fair and correct judgments. Where a reviewing

court can find that the record developed at trial estab-

lishes guilt beyond a reasonable doubt, the interest in

fairness has been satisfied and the judgment should be

affirmed.

478 U.S. at 579.

14

Likewise, in Delaware v. Van Arsdall, 475 U.S. 673

(1986), this Court considered a decision by the Delaware

Supreme Court, which had adopted a per se rule prohibiting

harmless error analysis as to a Confrontation Clause error.

The Court found that the error was susceptible to review for

harmlessness, and reversed the per se approach taken by the

Delaware court. Van Arsdall, 475 U.S. at 682.

A few years later, this Court reaffirmed its view that the

fundamental purpose of a criminal trial is to determine the

guilt or innocence of the accused, that harmless error analysis

is consistent with this core notion of fairness, and that the rule

“promotes public respect for the criminal process by focusing

on the underlying fairness of the trial rather than on the

virtually inevitable presence of immaterial error.” Arizona v.

Fulminante, 499 U.S. 279, 308 (1991) (quoting Van Arsdall,

475 U.S. at 681). Harmless error analysis is possible because

the impact of discrete errors can be assessed in the context of

a fully-developed record. “The common thread connecting

[harmless error] cases is that each involved ‘trial error’—

error which occurred during the presentation of the case to the

jury, and which may therefore be quantitatively assessed in

the context of other evidence presented in order to determine

whether its admission was harmless beyond a reasonable

doubt.” Fulminante, 499 U.S. at 307-08. “If the defendant

had counsel and was tried by an impartial adjudicator, there is

a strong presumption that any other [constitutional] errors that

may have occurred are subject to harmless error analysis.”

Neder, 527 U.S. at 8 (quoting Rose, 478 U.S. at 579).

In sum, these decisions recognize that, in the absence of a

constitutional provision mandating a precise remedy for con-

stitutional violations, the Court’s role is to fashion a remedy

that protects constitutional rights but that does not burden

courts with unnecessary retrials when the right was not mean-

ingfully impinged. The harmless error doctrine promotes

fundamental fairness in criminal proceedings by helping to

15

ensure that criminal cases are decided on the merits, and not

on the basis of defects that have no bearing on the jury’s

verdict. State v. Allen, 359 N.C. 425, 454-55, 615 S.E.2d 256

(2005) (Martin, J., dissenting). The doctrine ensures public

confidence in the criminal justice system by reducing the risk

that guilty defendants may go free. Johnson v. United States,

520 U.S. 461, 470 (1997) (quoting Traynor, Harmless Error,

supra, at 50: “Reversal for error, regardless of its effect on

the judgment, encourages litigants to abuse the judicial proc-

ess and bestirs the public to ridicule it.”). The harmless error

doctrine thereby conserves judicial resources by preventing

costly, time-consuming and unnecessary remands, and thus

promotes the constitutional right to a “speedy trial” by reduc-

ing the number of cases on trial court dockets. Allen, 359

N.C. at 454 (Martin, J. dissenting) (citing Chapman, 386 U.S.

at 22, and Traynor, Harmless Error, supra, at 14, 51). And,

finally, the doctrine promotes stability and predictability in

the law because appellate judges will be less likely to bend,

stretch, or adapt the law in order to avoid a clearly unwar-

ranted reversal. Jd. at 455.

The history, decisions and policies described above were

reaffirmed in Neder v. United States, wherein this Court ap-

plied harmless error analysis to the failure to obtain a jury

finding on an element of the offense. Neder had operated

several fraudulent real estate schemes funded by illegally

obtained bank transactions through which he gained over $40

million. He failed to report at least $5 million on his income

tax returns. He was charged with mail fraud, wire fraud, bank

fraud, and two counts of filing false income tax returns.

Neder, 527 U.S. at 5-6. In accord with the prevailing law at

the time, but over Neder’s objection, the trial judge decided

the issue of “materiality,” an element of the tax charge, and

instructed the jury that it need not consider materiality. Jd. at

6. Neder was convicted, and he appealed.

16

In United States v. Gaudin, 515 U.S. 506 (1995), this Court

had held that “materiality” was an element of a similar crime,

and must be submitted to the jury. In Neder, the Court

applied Gaudin to the tax charge brought against Neder, and

held that the materiality of Neder’s tax omissions should have

been decided by the jury. Neder, 527 U.S. at 25.

The Court also held that failure of a jury to pass on this

element of the offense was subject to harmless error analysis.

This holding was rooted in harmless error cases where an

“erroneous instruction [that] preclude[d] the jury from mak-

ing a finding on the actual element of the offense” had led

to an incomplete verdict. Neder, 527 U.S. at 10 (italics in

original). Sometimes the error had been a misdescription of

an element, see Pope v. Illinois, 481 U.S. 497 (1987) (mis-

statement of “value” element in pornography prosecution),

sometimes it had been the omission of an element, see

Johnson v. United States, 520 U.S. 461 (1997); California v.

Roy, 519 U.S. 2 (1996), and sometimes it had been the use of

a conclusive presumption. See Yates ». Evatt, 500 U.S. 391

(1991) (presumption of malice from intentional criminal act);

Rose v. Clark, 478 U.S. 570 (1986) (jury instruction con-

taining an erroneous rebuttable malice presumption). In each

situation the jury’s verdict was defective, and incomplete, in

the sense that there existed a gap between what was found

and what the law required. For instance, a conclusive pre-

sumption “deters the jury from considering any evidence

other than that related to the predicate facts . . . and ‘directly

foreclose[s}] independent jury consideration of whether the

facts proved established certain elements of the offens[e].’”

Neder, 527 U.S. at 10 (quoting Carella, 491 U.S. at 266

(Scalia, J., concurring in judgment)). Although each of these

cases involved an incomplete verdict, the Court found the

error harmless.

Applying the same reasoning to Neder, the Court found

that the evidence of “materiality” was overwhelming and

17

uncontroverted, and that the error which caused the incom-

plete verdict was therefore harmless beyond a reasonable

doubt. Neder, 527 U.S. at 16-17.

In 2003, this Court revisited the issue of harmless error

analysis in the context of a challenge to aggravating factors

that authorized a death sentence, and reversed the grant of a

federal habeas corpus petition because the Sixth Circuit had

erroneously interpreted this Court’s cases as precluding harm-

less error analysis. See Mitchell v. Esparza, 540 U.S. 12

(2003). Esparza killed a store clerk in a robbery by shooting

her once in the neck. He was charged with and convicted of

capital murder. On post-conviction review, Esparza alleged,

citing the Eighth Amendment, Apprendi v. New Jersey, and

Sullivan v. Louisiana, that the death penalty could not be

imposed because the state had not alleged the aggravating

factor—that Esparza was the “principal offender”—and hence

the jury had never found this factor. Mitchell v. Esparza, 540

U.S. at 15; see also Esparza v. Mitchell, 310 F.3d 414, 418-

20 (6th Cir. 2002).°

This Court reversed in a per curiam opinion, reaffirming its

previous harmless error holdings:

According to the Sixth Circuit, Ohio’s failure to charge

in the indictment that respondent was a “principal” was

the functional equivalent of “dispensing with the reason-

able doubt requirement” 310 F.3d, at 421 (citing Sullivan

v. Louisiana, supra, at 280). Our precedents, however,

do not support its conclusion. In noncapital cases, we

have often held that the trial court’s failure to instruct a

jury on all of the statutory elements of an offense is,

> The issues in Esparza were not simply Eighth Amendment-based.

The Sixth Circuit Court of Appeals’ decision was based on the conclusion

that permitting an appellate judge to find an aggravating fact that was

neither alleged nor proved would be akin to dispensing with the rea-

sonable doubt requirement, as forbidden in Sullivan. Esparza v. Mitchell,

310 F.3d at 421, 431 n.4 (Suhrheinrich, J. dissenting).

18

subject to harmless-error analysis. E.g., Neder v. United

States, 527 U.S. 1 (1999); California v. Roy, 519 U.S. 2

(1996) (per curiam); Carella v. California, 491 U.S. 263

(1989) (per curiam); Pope v. Illinois, 481 U.S. 497

(1987).

Mitchell v. Esparza, 540 U.S. at 16. As in Neder, the Court

distinguished Sullivan on the basis that the error in Sullivan

vitiated all the jury’s findings, not just a single finding. /d.

Accordingly, this Court held that the lower federal courts had

exceeded their authority to review state court interpretations

of Supreme Court precedent under 28 U.S.C. § 2254(d)(1).

Id. at 18.

Thus, Neder and Esparza, as well as the precedents upon

which those cases were decided, illustrate that instructional

errors as to elements and sentencing factors are both subject

to harmless error analysis when they result in an incomplete

verdict. This case does not present the issue of whether

to extend Neder or apply it to a slightly different context; .

it merely involves an application of the Neder and Esparza

rules.

The Washington Supreme Court believed, however, that

although harmless error analysis was permissible for incom-

plete verdicts caused by faulty elements instructions, harm-

less error analysis was not permissible for incomplete verdicts

caused by an erroneous sentencing factor instruction. See

Hughes, 154 Wash.2d at 148 n.12.° This holding is incorrect.

° Washington has long applied harmless error analysis to jury instruc-

tions that misdefine or omit an element of the offense. See State v.

Brown, 147 Wash.2d 330, 340, 58 P.3d 889(2002) (adopting Neder

because it was consistent with Washington law), and State v. Courte-

march, 11 Wash. 446, 39 P. 955 (1895) (improper presumption instruc-

tion). Similarly, Washington has a history of applying harmless error

review to sentencing enhancement errors. See State v. Belmarez, 101

Wash.2d 212, 216, 676 P.2d 492 (1984) (erroneous conclusive presump-

tion in deadly weapon instruction); Jn re Taylor, 95 Wash.2d 940, 944,

19

The constitutional error that occurred in this case was the

failure to submit a fact concerning the sentencing enhance-

ment to the jury. In a number of recent cases, this Court has

repeatedly held that, pursuant to the Sixth Amendment, any

fact (other than the fact of a prior conviction) that increases

the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a

reasonable doubt. Blakely, 542 U.S. at 301; Ring v. Arizona,

536 U.S. 584, 588-89 (2002); Apprendi, 530 U.S. at 490.

These decisions were based upon the Court’s understanding

that “[a]ny possible distinction between an ‘element’ of a

felony offense and a ‘sentencing factor’ was unknown to the

practice of criminal indictment, trial by jury, and judgment by

court as it existed during the years surrounding our Nation’s

founding.” Apprendi, 530 U.S. at 478 (footnote omitted).

For Sixth Amendment purposes, sentencing enhancements

that impose punishment above that authorized by the jury’s

verdict are the “functional equivalent” of elements of an of-

fense. Id. at 494 n.19.

Accordingly, there is no basis for distinguishing between

elements and sentencing enhancements when determining

whether harmless error applies. In each situation, the ques-

tion for harmless error analysis is the same—does the error in

the element or the enhancement, resulting in a less-than-

complete verdict on a single element or enhancement, require

automatic reversal? The answer, as established by Neder and

Esparza, is “no.” Where the jury failed to make an express

finding on a single element or enhancement, that failure can

be harmless in some circumstances. A single rule of appel-

632 P.2d 56 (1981) (failure to instruct jury that it needed to find firearm

enhancement beyond a reasonable doubt); State v. Hall, 95 Wash.2d 536,

541, 627 P.2d 101 (1981) (same); State v. Mode, 57 Wash.2d 829, 360

P.2d 159 (1961) (failure to submit special interrogatory concerning age of

victim); State v. Cook, 69 Wash. App. 412, 418, 848 P.2d 1325 (1993)

(error in defining “deadly weapon”).

20

late review should apply to faulty instructions on elements

and sentencing enhancements.

In this case, the Washington Supreme Court departed from

this Court’s clear precedent, as well as its own history of

applying harmless error review. Although it believed its

holding was compelled by this Court’s decisions, that con-

clusion was erroneous, and should be reversed. The error that

occurred in Recuenco’s trial is no different, and certainly no

more egregious, than the errors in Mitchell v. Esparza, Neder

v. United States, Pope v. Illinois, California v. Roy, Carella v.

California, Yates v. Evatt, or Rose v. Clark. The error here is

subject to the same harmless error review that applied in

those cases.

Il. THE WASHINGTON SUPREME COURT ER-

RONEOUSLY RELIED ON SULLIVAN V.

LOUISIANA TO CONCLUDE THAT STRUC-

TURAL ERROR OCCURS WHENEVER A

JUDGE DECIDES A SENTENCING ENHANCE-

MENT RESERVED FOR A JURY.

The Washington Supreme Court also held that the trial

court’s failure to ask the jury to find whether the deadly

weapon was a firearm constituted “structural error” and thus

was not subject to any harmless error analysis. Pet. App. 8a,

23a-27a. As did the Sixth Circuit in Esparza, supra, the state

supreme court here believed that this holding was compelled

by Apprendi v. New Jersey and Sullivan v. Louisiana. The

court was incorrect—an error in defining a sentencing en-

hancement is not structural.

A few types of error, affecting “a very limited class of

cases,” are not subject to Chapman harmless error analysis.

Johnson v. United States, 520 U.S. 461, 468 (1997). These

“structural” errors are almost always reversible error because

they “contain a defect affecting the framework within which

the trial proceeds, rather than simply an error in the trial

21

process itself.” Neder, 527 U.S. at 8 (quoting Fulminante,

499 U.S. at 310). Such errors “infect the entire trial process,”

Brecht v. Abrahamson, 507 U.S. 619, 630 (1993), so as to

“necessarily render a trial fundamentally unfair.” Rose, 478

U.S. at 577.

Errors that fit within this limited category include trials

wherein there was a complete denial of counsel, Gideon v.

Wainwright, 372 U.S. 335 (1963); a biased trial judge, Tumey

v. Ohio, 273 U.S. 510 (1927); racial discrimination in selec-

tion of a grand jury, Vasquez v. Hillery, 474 U.S. 254 (1986);

denial of self-representation, McKaskle v. Wiggins, 465 U.S.

168 (1984); denial of public trial, Waller v. Georgia, 467 U.S.

39 (1984); and the use of a defective reasonable-doubt jury

instruction. Sullivan v. Louisiana, 508 U.S. 275 (1993).

Each of these errors is “unquantifiable and indeterminate”

such that an appellate court could never discern whether the

error did not prejudice the defendant. Sullivan, 508 U.S. at

282. If an appellate court cannot make such a determination,

then the “criminal trial cannot reliably serve its function as a

vehicle for determination of guilt or innocence, and no

criminal punishment may be regarded as fundamentally fair.”

Fulminante, 499 U.S. at 310 (quoting Rose, 478 U.S. at 577-

78) (citation omitted). Structural error has traditionally been

a categorical determination based on the nature or the charac-

ter of the error itself, rather than a case-by-case examination

of a particular jury’s decision. Neder, 527 U.S. at 14.

In Sullivan v. Louisiana, the Court concluded that a faulty

reasonable doubt instruction was not subject to harmless error

analysis because it “vitiates al/ the jury’s findings,” 508 U.S.

at 281, and produces “consequences that are necessarily

unquantifiable and indeterminate.” /d. at 282. An alternative

thread of reasoning in Sullivan suggested a more restrictive

approach to harmless error analysis than had been taken

in past cases. Under that reasoning, where there is the

absence of an actual verdict of guilty-beyond-a-reasonable-

22

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 the harmless-error scrutiny

can operate.” /d. at 280 (italics in original).

Relying on this language, the Washington Supreme Court

held that replacing a jury finding with a judge finding was

“structural” error which could never be harmless.

. . . It would be illogical to perform harmless error

analysis on the absence of those findings. There is no

object upon which to apply harmless error analysis.

Instead of asking whether but for the error the findings

would have been the same, the court would be asking

whether but for the error the findings would have been

different. Such an analysis is the equivalent of speculat-

ing on the jury’s verdict, which the Supreme Court has

held is never allowed.

Pet. App. 23a (internal citations omitted—emphasis in original).

This holding that Sullivan bars harmless error review of

erroneous sentencing enhancement jury instructions is flawed

for a number of reasons. As discussed in the preceding sec-

tion, this approach cannot be reconciled with Esparza, Neder,

or the precedents on which those cases were built. It is also at

odds with this Court’s plain error decisions, wherein this

Court has noted that judicial findings do not irreparably taint

a criminal trial.

First, the broad language in Sullivan was expressly dis-

avowed in Neder. See Neder, 527 U.S. at 11-12 (“Although

this strand of the reasoning in Sullivan does provide support

for Neder’s position, it cannot be squared with our harmless-

error cases’); id. at 13 (“We believe this approach is mistaken

for more than one reason.”). The Court observed that an

extension of the reasoning of Sullivan to cases involving jury

instructions with a missing element would conflict with the

Court’s prior decisions, and result in an undesirable rule, even

23

if such an extension would not be illogical. In short, the

Court concluded that “. . . if the life of the law has not been

logic but experience, see O. Holmes, The Common Law |!

(1881), we are entitled to stand back and see what would be

accomplished by such an extension in this case.” /d. at 15.

Because a retrial would not focus on the omitted issue of

materiality, but instead would require re-litigation of issues

upon which the jury was properly instructed, the Court con-

cluded that “the Sixth Amendment [does not] require . . . us

to veer away from settled precedent to reach such a result.”

Id.; see also Esparza, 540 U.S. at 16-18.

Second, this Court has repeatedly rejected appeals based on

plain error analysis even where elements or sentencing factors

were omitted. Plain error analysis requires a party to show

(1) error, (2) that is plain, and (3) that affects substantial

rights. If all three steps are met, the Court decides whether

to exercise discretion to review the question, considering

whether (4) failure to note the error would seriously affect the

fairness, integrity, or public reputation of judicial proceed-

ings. See Fed. R. of Crim. P. 52(b); United States v. Olano,

507 U.S. 725 (1993); Johnson v. United States, 520 U.S. 461,

466-67 (1997) (conviction affirmed in spite of judicial finding

on element of “materiality” where defendant failed to object);

United States v. Cotton, 535 U.S. 625 (2002) (aggravated

sentence based on judicial finding of drug amount affirmed

where no objection was lodged to judicial finding). In

Johnson and Cotton, this Court refused to grant relief to a

defendant who failed to object to a judicial finding on an

element (Johnson) or a sentencing enhancement (Cotton)

because “even assuming respondents’ substantial rights were

affected, the error did not seriously affect the fairness, integ-

rity, or public reputation of judicial proceedings.” Cotton,

535 U.S. at 632-33.

Although plain error analysis is distinct from constitutional

harmless error analysis, in Neder, this Court found “instruc-

24

tive” its earlier decision in Johnson that a similar error was

not plain. Neder, 527 U.S. at 9. The Court recognized that

the fact that the error was not plain “cuts against the argument

that the omission of an element will always render a trial

unfair.” Jd. (emphasis in original). Thus, this Court’s plain-

error cases are consistent with the view that error in per-

mitting a judge, rather than a jury, to decide a single element

or sentencing enhancement, is fundamentally different from

those errors this Court has deemed “structural.”

For these reasons, this Court should reverse the Wash-

ington Supreme Court’s holding that structural error occurs

whenever a trial court errs in instructing a jury on a sentenc-

ing enhancement.

Ill. CHAPMAN/NEDER HARMLESS ERROR ANALY-

SIS IS FAIRLY APPLIED BY BOTH FEDERAL

AND STATE APPELLATE COURTS; A DIFFER-

ENT RULE WOULD NOT FURTHER JUSTICE

AND COULD DISPROPORTIONATELY AF-

FECT STATE CONVICTIONS.

As argued above, the Chapman / Neder harmless error test

strikes an appropriate balance between competing interests,

such that constitutional rights are protected without reversing

every imperfect trial. Although nearly every state and federal

appellate court has determined that harmless error analysis is

appropriate where a judge has decided an issue that should

have been decided by the jury, see Pet. 10-15; State v. Allen,

359 N.C. at 467 n.13 and 468 n.15 (Martin J., dissenting)

(collecting state and federal cases as of July 1, 2005), there is

no evidence that these rulings have diminished the jury trial

right. In fact, not surprisingly, many courts have reversed

jury verdicts under the stringent Chapman standard of review,

because it could not be said that the error was harmless

beyond a reasonable doubt. See United States v. Casas, 425

F.3d 23, 59-61 (1st Cir. 2005) (finding that Blakely error in

25

enhancing sentence based upon judicial finding of drug

quantity was not harmless beyond a reasonable doubt);

United States v. Olis, No. 04-20322, 2005 WL 2842077 (Sth

Cir. filed Oct. 31, 2005) (holding that Blakely error was not

harmless beyond a reasonable doubt); United States v. Meyer,

427 F.3d 558, 560-61 (8th Cir. 2005) (finding that Booker

error in setting amount of fine was not harmless beyond a

reasonable doubt); United States v. Small, 423 F.3d 1164,

1190-91 (10th Cir. 2005) (holding that judicial finding of

drug quantity at sentencing was not harmless beyond a rea-

sonable doubt). These cases illustrate that appellate courts

well understand the limited circumstances under which con-

stitutional error can truly be harmless, and faithfully apply

that standard. A rule of automatic reversal is not required.

It should also be noted that the effect of an automatic

reversal rule in these circumstances would be significant, and

is likely to be greater on state courts than on federal courts

because many state courts, including Washington, do not

apply the federal plain error rule. In Neder, the dissenting

justices suggested that the Court was overly concerned that an

automatic reversal rule would “invalidate convictions in

innumerable cases where the defendant is obviously guilty,”

and insisted that “there is simply no basis for this concern”

because most errors would not have been preserved, and thus

would be rejected pursuant to the federal plain error analysis.

Neder, 527 U.S. at 39 (Scalia, J., dissenting).

But Washington courts employ a considerably more liberal

scope of review that permits constitutional errors in jury

instructions to be raised for the first time on review. See, e.g.,

State v. Mills, 154 Wash.2d 1, 6, 109 P.3d 415 (2005)

(holding that the failure to instruct the jury on every element

of the crime charged is an error of constitutional magnitude

that may be raised for the first time on appeal).

Thus, under Recuenco, a defendant in Washington whose

jury was improperly instructed as to a sentencing enhance-

26

ment can remain silent at trial, yet obtain automatic reversal

on appeal, no matter how insignificant the error. To the

extent that this Court’s decision on the application of the

harmless error test is influenced by the potential impact of

that test, we respectfully urge this Court not to adopt a test

that will have greater repercussions on the state courts than on

the federal courts.

Finally, although the jury instructions and the verdict form

in this case should have been drafted to ensure an express

jury verdict that Recuenco was armed with a firearm, the

error clearly did not deprive Recuenco of a fair trial. Even

defense counsel said after trial, “the firearm is a[n] element of

this offense as it has been pleaded and argued to the jury and

evidently, perhaps obviously, proven to the jury.” J.A. 37.

Likewise, the trial court observed that, “. . . no other weapons

[we]re the subject of this trial other than a firearm.” J.A. 25.

Under these circumstances, it is clear that the error in drafting

these instructions did not affect the verdict on the enhance-

ment, and that the error was harmless beyond a reasonable

doubt.

27

CONCLUSION

The decision of the Washington State Supreme Court

should be reversed, and the case should be remanded for a

determination of whether the error was harmless, and for con-

sideration of other issues properly presented by Recuenco’s

appeal.

Respectfully submitted,

NORM MALENG

King County Prosecuting Attorney

JAMES M. WHISMAN *

Senior Deputy Prosecuting Attorney

BRIAN M. MCDONALD

Senior Deputy Prosecuting Attorney

W554 King County Courthouse

516 Third Avenue

Seattle, Washington 98104

(206) 296-9650

* Counsel of Record Counsel for Petitioner