FILED JUNE 7, 2018 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

STATE OF WASHINGTON, ) ) No. 34233-6-III Respondent, ) ) v. ) ) BISIR BILAL MUHAMMAD, ) PUBLISHED OPINION ) Appellant. )

FEARING, J. — Appellant Bisir Muhammad challenges the validity of the stop of

his car, the search of his car, and the gathering of other evidence. He also challenges his

convictions for first degree murder and first degree rape on the basis of double jeopardy

and merger. We reject Muhammad’s challenges and affirm his convictions.

FACTS

This appeal lies from the callous murder of Ina Clare Richardson, a petite 102-

pound, 69-year-old woman. A jury convicted Bisir Muhammad of the homicide.

Because issues on appeal concern a motion to suppress evidence and trial evidence, we

alternate between facts presented at the suppression hearing and the trial.

We begin with some trial testimony. Victim Ina Richardson suffered from bipolar

disorder. During her manic phases, Richardson openly trusted others. On the night or No. 34233-6-III State v. Muhammad

morning of November 6-7, 2014, someone beat, raped, and strangled Richardson to

death.

On November 7, a couple on a morning walk discovered Ina Richardson’s naked

corpse discarded along the side of an access road to a park in Clarkston. The unidentified

Richardson bore bruises, scrapes, and cuts throughout her body and swollen lips. Her

body bore defensive wounds indicating Richardson had struggled with her attacker. One

of Richardson’s pinkie nails was torn off. Richardson bled from her vagina and carried

bruises on her thighs and genitalia. Since Richardson’s feet remained remarkably clean,

law enforcement officers suspected her killer slayed her elsewhere and transported the

corpus to the dump site.

After the media broadcasted a description of the unidentified body, Ina

Richardson’s friend, Jeff Smith, told law enforcement that he suspected Richardson to be

the deceased person. Smith explained that he encountered Richardson at the Clarkston

Albertsons on the night of November 6 and that Richardson then sought a ride home from

the store. Smith could not help Richardson because he rode a bicycle. Richardson

unsuccessfully asked others to provide a ride.

Based on Jeff Smith’s tip, law enforcement procured and reviewed security

camera footage from an Albertsons grocery store, a Costco store, a Walmart store, and a

McDonald’s restaurant and spoke to workers at the business establishments. The

businesses surrounded one another. The various security cameras activated on movement

2 No. 34233-6-III State v. Muhammad

and deactivated without movement. Law enforcement constructed a timeline of Ina

Richardson’s last night alive using the footage.

Walmart videotape showed a distinctive car leaving the nearby Quality Inn and

parking in the Walmart parking lot for approximately one-half an hour. Bisir Muhammad

worked that evening at the Quality Inn. The older, boxy, maroon American model car

exhibited a discolored front driver’s side rim, a chrome strip, and a light on the side

between the front and rear doors.

An Albertsons inside store camera depicted Ina Richardson shopping for one hour

and ten minutes. Video from the Albertsons outside security camera showed Richardson

leaving the store at 11:06 p.m. and walking southeast through the parking lot toward a

ubiquitous McDonald’s restaurant. The video shows the distinctive car parked in the

southeast end of the parking lot near the McDonald’s for a considerable time before

Richardson approached, with no one entering or emerging from the car. The camera

stopped recording as Richardson walked into the darkness.

The Albertsons video next displays the activation of the headlights of the

distinctive car. Seven minutes later the car traveled west through the parking lot. Video

from a nearby Costco surveillance camera then showed the same vehicle moving with

two people inside. The car drove on to an access road behind the Quality Inn and parked

in a service entrance area behind the hotel. Law enforcement later found a condom

wrapper in this secluded location. At 12:37 a.m., video showed the car leaving the

3 No. 34233-6-III State v. Muhammad

vicinity. Richardson was never again seen alive.

An autopsy confirmed that someone sexually assaulted and strangled Ina

Richardson. The autopsy also verified injuries to Richardson’s scalp, face, lips, arms,

forearms, hands, thighs, knees, legs, right buttock, and left groin region. Finally, the

autopsy showed a large laceration in Richardson’s vaginal canal that evidenced a blunt

object being forced into the vagina and tearing tissue inside.

Swabs of Richardson’s vagina later yielded a small amount of deoxyribonucleic

acid (DNA) consistent with Bisir Muhammad’s DNA profile. Forensic scientist Anna

Wilson testified at trial that use of a condom would explain the limited amount of DNA

to test. DNA retrieved from under Richardson’s fingernails also matched Muhammad’s

DNA.

Because video last pictured Ina Richardson walking toward the distinctive maroon

car that soon left the parking lot, law enforcement studied the features of the video in

hopes of locating the motor vehicle. On November 10, three days after the discovery of

Richardson’s body, Clarkston Police Officer Darrin Boyd espied the car driving on a city

street. Officer Boyd read the vehicle’s license plate number and stopped the maroon car

to identify the driver and registered owner of the car. Both were Bisir Muhammad.

We now turn to the content of police records filed in response to the motion to

suppress. During the investigating stop, Officer Darrin Boyd told Bisir Muhammad of a

crime that occurred in the Albertsons parking lot on November 6 and of a car matching

4 No. 34233-6-III State v. Muhammad

Muhammad’s car being in the lot. Officer Boyd asked Muhammad whether he parked in

the parking lot that night, and Muhammad said no. Muhammad commented that, to his

recollection, he drove directly home after finishing his work shift at the Quality Inn that

night. Muhammad asked Boyd what crime occurred, and Boyd responded by inquiring

of Muhammad if he read the paper. Muhammad answered no. Muhammad asked Boyd

if someone robbed McDonalds, and Boyd again answered in the negative. To our

knowledge, Boyd did not disclose the nature of the crime. Boyd gained Muhammad’s

phone number from Muhammad. Officer Boyd thanked Muhammad for his time,

apologized for any inconvenience, and released him.

After questioning Bisir Muhammad, Officer Darin Boyd informed others at the

Clarkston Police Department that he located the distinctive car depicted in the video

footage. Sergeant Richard Muszynski reviewed records and learned that Muhammad was

a registered sex offender. Muszynski also noted a prior rape conviction from Arkansas

for Muhammad under the alias “Billy Joe Dallas.” Clerk’s Papers at 414, 475.

Still on November 10, Sergeant Richard Muszynski directed Officer Darrin Boyd

to surveil Bisir Muhammad and Muhammad’s vehicle. Officer Boyd viewed Muhammad

retrieve a woman from his apartment residence, drive to Walmart, enter the store, and

return to his home. Muhammad parked the maroon car at the rear of the apartment. For

some unknown reason, Boyd abandoned his surveillance. When Boyd returned to the

Muhammad apartment building, Boyd noticed the car missing.

5 No. 34233-6-III State v. Muhammad

Still on November 10, while Officer Darrin Boyd tailed Muhammad, Sergeant

Richard Muszynski procured a warrant to search the maroon car. Police could not

thereafter locate the car.

Officer Darrin Boyd grew concerned that Bisir Muhammad might flee, destroy

evidence, or endanger someone else’s safety. Officer Boyd asked police dispatch to

request AT&T, Muhammad’s cell phone carrier, to “ping” Muhammad’s phone. The

onomatopoeic term “ping” references the sending of a signal to identify the current

location of a cell phone. The phone carrier can discern the location through cell-site

locations, truncated as cell-site location (CSL) or cell-site location information (CSLI), or

by tracking satellite-based global positioning system data (GPS). The carrier detects a

general, not specified, area of the phone by CSL when the cell phone connects with a cell

tower in order to initiate or receive a call. GPS data reveals the exact location of the

phone by revealing the phone’s latitude and longitude coordinates regardless of a pending

call.

We now return to more trial testimony. On November 10, Bisir Muhammad’s cell

phone carrier used a CSL ping and discovered Muhammad’s presence in the vicinity of

several Lewiston, Idaho, orchards. Lewiston police officers accompanied Clarkston

officers in searching the region and locating Muhammad and his car. At the orchards,

Sergeant Richard Muszynski advised Muhammad that he held a search warrant for the

maroon car and asked if Muhammad would speak to officers at the Clarkston police

6 No. 34233-6-III State v. Muhammad

station. Muhammad agreed, and officers seized his car pursuant to the warrant. While in

the orchards, officers also seized Muhammad’s cell phone without a warrant. After

traveling to Clarkston, officers advised Muhammad of his constitutional rights.

Muhammad signed a form that waived his rights and consented to speak with the officers.

During the beginning of the Clarkston Police Department interview, Bisir

Muhammad claimed again that he drove directly home after his shift washing dishes at

the Quality Inn on November 6. Muhammad also stated he would have been home by

10:25 p.m. Of course, law enforcement had already viewed videos that contradicted

Muhammad’s statement. When confronted that a video showed him parked in the

Walmart parking lot, Muhammad first responded that he did not remember going to

Walmart and had no reason to shop there. Muhammad next declared that he entered

Walmart to cash a paycheck, but the store refused to cash the check. Officers then

disclosed that the Walmart security video depicted Muhammad sitting in his car in the

parking lot for thirty minutes and never emerging from the car. Muhammad again

changed his story and asserted that he saw his friend Mike Delameter at a nearby Motel

6. When officers told Muhammad that a video pictured Ina Richardson walking toward

his car that night, he stated he visited with Delameter in the motel at that time. Officers

later approached Delameter, who denied seeing Muhammad that night.

During the November 10 interview at the Clarkston Police Department station,

Bisir Muhammad also told officers that he worked at the Clarkston Albertsons for two

7 No. 34233-6-III State v. Muhammad

months, ending two weeks before November 6, 2014. The officers showed Muhammad a

picture of Ina Richardson and asked if he knew her from her shopping at Albertsons.

Muhammad recognized Richardson but maintained that he only spoke to her once in a

large group setting. Nevertheless, Albertsons security camera footage from inside the

store showed Muhammad and Richardson talking alone together on two occasions. In

one of the videos, taken one week before her rape and murder, Richardson appears to

rebuff an attempted kiss from Muhammad.

During the November 10 interview, Bisir Muhammad repeatedly denied

participation in Ina Richardson’s disappearance and death and refused to donate a DNA

sample. Muhammad finally exercised his right to counsel and left the interview.

On searching Bisir Muhammad’s maroon car, officers found, in the trunk, latex

gloves, personal lubricant, pornographic digital video disks, and a box of condoms

bearing the same lot number as the condom wrapper found in the secluded area where

Muhammad had parked for an hour after leaving the Albertsons parking lot. Albertsons

clerk Vickie Hollahan testified at trial that Muhammad informed her that he and his wife,

who is disabled, do not have sex. Law enforcement tested blood stains on the front

passenger seat and headrest and confirmed the fluid as Ina Richardson’s blood.

Officers also garnered a warrant to search Bisir Muhammad’s cell phone and to

gather Muhammad’s phone records from AT&T. The phone records undermine

Muhammad’s claim that he arrived home on November 6 by 10:25 p.m. The records

8 No. 34233-6-III State v. Muhammad

confirm phone calls between Muhammad and his wife beginning at 12:17 a.m. on

November 7, 2014, an hour after his car left the Albertsons parking lot. AT&T CSL data

confirmed that Muhammad’s phone remained stationary during the time his car was

parked behind the Quality Inn. After 12:30 a.m., his phone used other cell phone towers,

indicating Muhammad traveled. At one time, Muhammad’s phone used a cell tower with

an unobstructed line of sight to the location where the walkers found Ina Richardson’s

body.

Police arrested Bisir Muhammad on November 13, 2014. The local newspaper

reported the arrest on the front page of the November 13 edition. At 4:50 a.m., on

November 14, Muhammad’s wife, Detra, called her insurance agent Vicki DeRoche.

Detra hysterically wept and told DeRoche that she worried Muhammad had acted

awfully. Detra explained that Muhammad came home late on the night of the murder

without explanation, that blood spotted his clothes, and that he discarded a used condom

while claiming the condom was a latex glove he used to help an injured coworker.

PROCEDURE

The State of Washington charged Bisir Muhammad with murder in the first degree

and rape in the first degree. The State pled first degree murder under the felony murder

provisions of RCW 9A.32.030(1)(c) based on Muhammad committing the homicide in

the furtherance of the rape.

Bisir Muhammad moved to suppress all physical evidence obtained during the law

9 No. 34233-6-III State v. Muhammad

enforcement investigation of his case and identification and location information derived

from the warrantless ping. Muhammad also sought suppression of his prearrest

statements, including statements made to Officer Darrin Boyd during the car stop.

Muhammad argued that Officer Boyd conducted an unlawful stop and that law

enforcement improperly gained all search warrants based on information gathered during

that stop. Muhammad also argued that officers lacked authority to seize his car in Idaho

based on a Washington warrant and that the cell phone ping used to locate Muhammad

qualified as an unlawful search. The trial court found that, even if the ping constituted a

search, exigent circumstances justified immediate police action to direct the ping. The

trial court denied the suppression motion. The court issued an order denying suppression,

but entered no formal findings of fact.

After a trial, the jury found Bisir Muhammad guilty of both charges. The jury also

found the facts sufficient to support the presence of aggravating circumstances, because

of Ina Richardson’s vulnerability. The trial court imposed a term of 548 months’

confinement for the murder and an indeterminate sentence of 318 months’ confinement to

life for the rape. Due to the jury’s finding of aggravating circumstances, the court

ordered, as an exceptional sentence, that the two sentences be served consecutively

instead of concurrently. The total term amounts to at least 866 months. The trial court

entered findings and conclusions in support of the exceptional sentence that the rape and

murder do not merge because the two crimes had independent purposes and effects.

10 No. 34233-6-III State v. Muhammad

LAW AND ANALYSIS

Vehicle Stop

Bisir Muhammad first contends that Officer Darrin Boyd’s stop of his maroon car

on November 10, 2014 violated the Fourth Amendment. Muhammad insists that officers

saw no criminal conduct in the security videos footage, and thus Boyd lacked grounds to

stop his car. By stopping the car, Boyd discovered the identity of Muhammad and his

ownership of the distinctive car, which information officers employed that day to procure

the search warrant for his car. Because of the illegality of the stop, Muhammad asks that

we reverse the trial court’s refusal to suppress all physical evidence and statements

procured during his questioning. According to Muhammad, all evidence gathered

resulted from the illegal stop.

Officer Darrin Boyd detained Bisir Muhammad’s car for questioning of the driver

rather than to arrest the driver. Thus, we characterize the stop as a Terry stop and address

the propriety of a Terry stop under the circumstances known to Boyd.

We review the traffic stop of the distinctive maroon car only under Washington

law, since state law affords an accused greater protection. As a general rule, warrantless

searches and seizures are per se unreasonable, in violation of article I, section 7 of the

Washington State Constitution. State v. Duncan,

,

(2002). Washington recognizes at least six narrow exceptions to the warrant

requirement: consent, exigent circumstances, searches incident to a valid arrest, inventory

11 No. 34233-6-III State v. Muhammad

searches, plain view searches, and Terry investigative stops. State v. Garvin,

,

(2009). The State bears the burden of demonstrating that a

warrantless seizure falls into a narrow exception to the rule. State v. Doughty,

,

(2010).

Whether pretextual or not, a traffic stop constitutes a “seizure” for the purpose of

constitutional analysis. State v. Ladson,

,

(1999).

Warrantless traffic stops pass constitutional challenge under article I, section 7 as

investigative stops, but only if based on a reasonable articulable suspicion of either

criminal activity or a traffic infraction, and only if reasonably limited in scope. State v.

Chacon Arreola,

,

(2012); State v. Ladson,

. Likewise, police may conduct a Terry stop if police have a reasonable

suspicion of criminal activity. State v. Ibrahim,

,

(2011). Terry permits an officer to briefly detain, for limited questioning, a person whom

he or she reasonably suspects of criminal activity. State v. Broadnax,

,

(1982), abrogated on other grounds by Minnesota v. Dickerson,

,

,

(1993).

When police have been unable to locate a person suspected of involvement in a

past crime, the ability to briefly stop that person, ask questions, or check identification in

the absence of probable cause promotes the strong government interest in solving crimes

and bringing offenders to justice. United States v. Hensley,

,

No. 34233-6-III State v. Muhammad

675,

(1985). The minimally intrusive Terry stop, therefore, allows an

officer to make an intermediate response to a situation for which he or she lacks probable

cause to arrest but which calls for further investigation. State v. Kennedy,

,

(1986).

Officer Darrin Boyd did not observe any criminal conduct either on the security

videos or while observing Bisir Muhammad and before stopping Muhammad.

Nevertheless, the totality of the circumstances gave rise to reasonable suspicion for

Officer Boyd to initiate an investigatory stop based on past criminal conduct occurring

off camera and known to Boyd. After studying video footage from the night of Ina

Richardson’s disappearance, Officer Boyd noted distinctive features of a vehicle toward

which Richardson fatefully walked. Three days later, Boyd witnessed the same

distinctive car driving in town. Based on the idiosyncratic character of the maroon car,

Officer Boyd possessed grounds to suspect its driver might hold knowledge concerning

the crimes or might have participated in the horrendous crimes against Ina Richardson.

Officer Darrin Boyd’s stop did not exceed the scope of a Terry search. Boyd

gained identification of Muhammad, asked him if he was present at the crime scene

nights earlier, asked him if he saw any suspicious activity that night, and allowed

Muhammad to proceed after answering the questions.

Bisir Muhammad contends the stop violated the state constitution because Officer

Darrin Boyd articulated no particularized facts supporting the possibility that Muhammad

13 No. 34233-6-III State v. Muhammad

engaged in a crime at the time of the stop. But, similar to federal law, Washington law

does not limit Terry stops to crimes in progress. State v. Snapp,

,

(2012). Washington courts have long described the suspicion required to

justify a Terry stop as “a substantial possibility that criminal conduct has occurred or is

about to occur.” State v. Snapp,

(emphasis added) (quoting State v.

Johnson,

,

(1996)).

Bisir Muhammad cites to State v. Quezadas-Gomez,

,

(2011) to support his assignment of error. Muhammad uses the decision’s analysis

to conclude that, unless probable cause to arrest exists prior to the investigatory vehicle

stop, the stop is unlawful. In Quezadas-Gomez, a law enforcement officer stopped the

car driven by Eduardo Quezadas-Gomez based on probable cause that Quezadas-Gomez

engaged in a drug transaction. This court held the stop to be legal because of the

probable cause. The decision did not address the lawfulness of a Terry stop.

We observe that other decisions involve the law enforcement officer gaining

reasonable suspicion that a person who previously engaged in, presently engages in, or is

about to engage in a crime. Officer Darrin Boyd held reasonable suspicion that the car

driven by Bisir Muhammad assisted in or functioned as the scene of a crime. On

November 10, Boyd could not identify the driver of the maroon car as the driver of the

car on the night of November 6. In this appeal, Muhammad does not argue the lack of

reasonable suspicion because the videotape did not capture his face or because Officer

14 No. 34233-6-III State v. Muhammad

Boyd did not recognize Muhammad’s face while the latter drove his car. We note that

the government may temporarily seize property based on a reasonable and articulable

suspicion of criminal activity and the object’s connection to the activity. United States v.

Van Leeuwen,

,

,

(1970); State v. Jackson,

,

(1996).

The State also contends that, even without information gained by Officer Darrin

Boyd during the traffic stop, law enforcement held probable cause to procure the search

warrant for the maroon car. We need not address this contention.

Cell Phone Ping

Bisir Muhammad next contends the Clarkston Police Department violated his

constitutional right to privacy when gathering from the phone carrier information as to

the current location of Muhammad’s cell phone. Thus, Muhammad seeks suppression of

all evidence and information gathered after the warrantless, surreptitious ping. We

decline to decide the important question of whether a warrantless employment of a cell

phone ping infringes on the phone owner’s privacy rights under article I, section 7 of the

Washington State Constitution. We instead affirm the trial court’s ruling that exigent

circumstances warranted the ping.

Exigent circumstances exist to excuse the warrant requirement if demand for

immediate investigatory action renders it impracticable for the police to obtain a warrant.

State v. Cardenas,

,

,

(2002). Exigent

15 No. 34233-6-III State v. Muhammad

circumstances excuse the requirement to obtain a warrant prior to conducting a search

when obtaining a warrant is not practical because the delay inherent in securing a warrant

would compromise officer safety, facilitate escape, or permit the destruction of evidence.

State v. Smith,

,

(2009). Five circumstances qualify as

exigent circumstances: (1) a hot pursuit, (2) a fleeing suspect, (3) danger to the arresting

officer or to the public, (4) the mobility of a vehicle, and (5) the mobility or destruction

of evidence. State v. Counts,

,

(1983). To determine

whether exigent circumstances exist, a court must look to the totality of the

circumstances. State v. Smith,

.

Six nonexclusive factors guide the analysis of whether exigent circumstances exist

under the law of search and seizure: (1) the gravity or violent nature of the offense with

which the suspect is to be charged, (2) whether the suspect is reasonably believed to be

armed, (3) whether there is reasonably trustworthy information that the suspect is guilty,

(4) there is strong reason to believe that the suspect is on the premises, (5) a likelihood

that the suspect will escape if not swiftly apprehended, and (6) the entry is made

peaceably. State v. Cardenas,

(2002). While every factor need not be

present to establish exigency, in the aggregate the factors must establish the need to act

quickly. State v. Patterson,

,

(1989). The mere

suspicion of flight or destruction of evidence does not satisfy a “particularity”

requirement of exigent circumstances. State v. Coyle,

,

16 No. 34233-6-III State v. Muhammad

(1980).

All but one of the six exigent circumstances factors militate in favor of a finding

of exigent circumstances in this appeal. Although officers knew Ina Richardson

experienced a violent death, officers did not know Bisir Muhammad to bear arms.

Nevertheless, the nature of the crime rises to the zenith in terms of an individual victim.

Bisir Muhammad’s driving of and ownership of the distinctive car found in the video, his

employment near the site of the crime, and his previous encounters with Ina Richardson

that could have led Richardson to trust him engendered a reasonable belief of his being a

suspect. Muhammad already knew that law enforcement knew of his car’s proximity to

the crime and Muhammad would suspect that law enforcement considered him a suspect.

Therefore, a wise Muhammad would have fled the region, but surprisingly failed to do

so. Perhaps he thought he could hide from law enforcement in an orchard located in

another state. Law enforcement peacefully entered the orchard where Muhammad

reposed. Although such evidence could likely not be introduced at trial, officers also

knew Muhammad to be a registered sex offender with a previous rape conviction under

another name. Use of the ping would reasonably identify the location of Muhammad.

Bisir Muhammad promotes the lack of exigent circumstances due to the fact that

Ina Richardson’s murder occurred three days earlier. He also emphasizes that Officer

Darrin Boyd made no mention of a homicide when stopping Muhammad earlier that day.

Muhammad underscores that he had not fled by the time Boyd stopped him. Finally,

17 No. 34233-6-III State v. Muhammad

Muhammad highlights the fact that Boyd abandoned his surveillance of Muhammad at

the latter’s apartment. Nevertheless, none of the exigent circumstances factors depend on

whether an officer earlier disclosed the nature of a crime to the suspect. While the crime

occurred three days before officers pinged Muhammad’s phone, the ping, as the trial

court noted, occurred only hours after Boyd encountered Muhammad and commented

that police knew of the crime and knew of the presence of the maroon car in the location

of the crime. Muhammad had not earlier fled, but he lacked knowledge that officers

knew of the connection of the maroon car to the crime. Officers could reasonably deduce

that the window of time for collection of evidence rapidly closed. Like Muhammad, we

question Boyd’s abandonment of the surveillance, but the abandonment could be the

result of another emergency or simple neglect. Neglectful conduct does not dissipate

exigent circumstances.

We question, as does Bisir Muhammad, the validity of the exigent circumstances

exception to the warrant requirement now that law enforcement may promptly gain a

search warrant through telephone calls to a judge at nearly any time of day.

Nevertheless, any abrogation or restriction of the exigent circumstances doctrine should

come from our state Supreme Court. We also cannot preclude the possibility that some

circumstances, such as immediate unavailability of a magistrate, prevented law

enforcement from quickly gaining a search warrant for the ping on November 10.

18 No. 34233-6-III State v. Muhammad

Double Jeopardy

Bisir Muhammad assigns error for the first time on appeal to his convictions for

both first degree murder and first degree rape. By emphasizing that the State employed

the rape to qualify him for a first degree murder conviction, Muhammad contends the two

convictions violate double jeopardy principles.

Whether the two convictions violate double jeopardy principles poses as the most

difficult question in this appeal. Both parties raise excellent arguments in advance of

each’s respective position. Because of a common practice of charging an offender for

more than one crime based on one act or one course of conduct, the jurisprudence of

double jeopardy spawns numerous federal and state decisions. In turn, courts have split

double jeopardy principles into multipart tests, rules, and subrules that emphasize

different features of a prosecution or the multiple acts of the accused. For these reasons,

many decisions support the State’s arguments and numerous decisions corroborate Bisir

Muhammad’s contrary arguments, such that this court would stand on firm foundation in

ruling in favor of either party. We conclude, however, that convictions for first degree

rape and first degree murder, under this appeal’s circumstances, do not offend double

jeopardy because the murder did not necessarily follow from the rape and the murder

statutes and rape statutes serve diverse purposes.

Under the United States Constitution, no person shall “be subject for the same

offense to be twice put in jeopardy of life or limb.” U.S. CONST. amend. V. Under our

19 No. 34233-6-III State v. Muhammad

state constitution: “No person shall be . . . twice put in jeopardy for the same offense.”

WASH. CONST. art. 1, § 9. These clauses protect defendants against “prosecution

oppression.” State v. Womac,

,

(2007).

The double jeopardy clause of the Fifth Amendment encompasses three separate

constitutional protections: against a second prosecution for the same offense after

acquittal, against a second prosecution for the same offense after conviction, and against

multiple punishments for the same offense. State v. Gocken,

,

(1995). The federal and state double jeopardy provisions parallel one another

in thought, substance, and purpose and thus afford the same protections. In re Personal

Restraint of Davis,

,

(2000).

An offender may raise a double jeopardy challenge for the first time on appeal.

State v. Jackman,

,

(2006). The usual remedy for

violations of the prohibition of double jeopardy is to vacate the lesser offense. State v.

Hughes,

, 686 n.13,

(2009).

Despite the double jeopardy clause, the State may bring multiple charges arising

from the same criminal conduct in the same proceeding. State v. Michielli,

,

(1997). Because the legislature holds the power to define

offenses, whether two offenses are separate offenses hinges on whether the legislature

intended them to be separate. In re Personal Restraint of Francis,

,

(2010). Within constitutional constraints, the legislature may define crimes

20 No. 34233-6-III State v. Muhammad

and punishments as it sees fit. State v. Smith,

,

(2013); State v. Calle,

,

(1995).

In the context of an accused, such as Bisir Muhammad, charged with crimes under

two statutes, courts base any double jeopardy review on statutory analysis, not

constitutional law. One might question if a prosecution under two distinct statutes even

raises double jeopardy concerns, because courts defer to intent of the legislature. The

legislature, without constitutional restrictions, may punish the same act twice by creating

distinct crimes.

A trial court’s imposition of more than one punishment for a criminal act that

violates more than one criminal statute does not necessarily constitute multiple

punishments for a single offense for purposes of double jeopardy. State v. Calle,

(1995). In order to determine if multiple convictions violate double

jeopardy, we ask whether the legislature intended to allow multiple punishments for

criminal conduct that violates more than one statute. State v. Louis,

,

(2005). If the legislature intended that cumulative punishments can be

imposed for the crimes, double jeopardy is not offended. In re Personal Restraint of

Borrero,

,

(2007). Also, if the legislature does not

value a court’s decision prohibiting an accused from convictions on two crimes for the

same act or similar acts, the legislature could avoid the repercussions of the ruling by

increasing the punishment of one of the crimes. For this reason, the double jeopardy

21 No. 34233-6-III State v. Muhammad

clause constrains more the prosecution and the courts, rather than the legislature.

The analysis throughout a double jeopardy review focuses on the intent of the

legislature, but we start with determining whether the language of the criminal statutes

shows a desire to allow prosecution for the separate crimes. To determine whether the

legislature intended two separate offenses, we first consider any express or implicit

representations of legislative intent. In re Personal Restraint of Francis,

(2010). We seek to determine if the legislature defined what it considered to be one

unit of prosecution. The unit of prosecution is the essential conduct that makes up the

core of the offense. In re Personal Restraint of Francis,

(2010).

We quote the relevant sections of the first degree murder and first degree rape

statutes, the crimes of Bisir Muhammad’s convictions. RCW 9A.32.030 defines murder

in the first degree as:

(1) A person is guilty of murder in the first degree when: (a) With a premeditated intent to cause the death of another person, he or she causes the death of such person or of a third person; or .... (c) He or she commits or attempts to commit the crime of either (1) robbery in the first or second degree, (2) rape in the first or second degree, (3) burglary in the first degree, (4) arson in the first or second degree, or (5) kidnapping in the first or second degree, and in the course of or in furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death of a person other than one of the participants. . . .

RCW 9A.32.030(1)(c), one of two felony murder statutes, allows the State to convict a

defendant of first degree murder without showing premeditated intent if the defendant

22 No. 34233-6-III State v. Muhammad

also commits one of five crimes, including rape. State v. Craig,

,

(1973). First degree felony murder requires no specific criminal mental

state other than the one necessary for the predicate crime. State v. Frazier,

,

(1983). RCW 9A.32.050(1)(b) contains another felony murder

provision when a defendant commits a felony, other than the five listed in RCW

9A.32.030(1)(c), during the course of the murder, but this statute classifies the crime as

second degree murder. Under the former statute, RCW 9A.32.030(1)(c), the State need

not prove a consummated rape, only an attempt to rape, to convict for first degree felony

murder.

RCW 9A.44.040 defines first degree rape as:

(1) A person is guilty of rape in the first degree when such person engages in sexual intercourse with another person by forcible compulsion where the perpetrator or an accessory: (a) Uses or threatens to use a deadly weapon or what appears to be a deadly weapon; or (b) Kidnaps the victim; or (c) Inflicts serious physical injury, including but not limited to physical injury which renders the victim unconscious. . . .

One might conclude that the legislature wanted Bisir Muhammad convicted of two

crimes, since it created two distinct crimes, but such a conclusion would mean double

jeopardy could never bar charges under two statutes. One might also conclude that the

legislature only wanted Muhammad convicted of one crime since the first degree murder

statute incorporates the first degree rape statute. But we also observe that the State may

23 No. 34233-6-III State v. Muhammad

convict a defendant of first degree felony murder without convicting the defendant of

rape by convicting him of one of five other felonies. In the end, we discern no clear

evidence, in the statutory language, of the Washington State Legislature’s intent as to

whether the State may convict one or both first degree rape and first degree murder for

one course of conduct.

When, as here, the language of the statutes lies silent on this question, we next

apply the Blockburger “‘same evidence’” rule of statutory construction. State v.

Freeman,

,

(2005). Since this principle constitutes a

rule of statutory construction, we again defer to legislative intent rather than enforcing

constitutional principles.

Under the United States Supreme Court’s decision in Blockburger v. United

States,

,

,

(1932), when “the same act or

transaction constitutes a violation of two distinct statutory provisions, the test to be

applied to determine whether there are two offenses or one is whether each provision

requires proof of a fact which the other does not.” Unless each crime contains an element

not found in the other crime, double jeopardy precludes a conviction on both crimes.

Although courts purportedly apply the Blockburger test when they cannot discern

legislative intent, the test serves as just another means of discerning legislative intent.

State v. Calle,

(1995).

Washington modifies the Blockburger test to read: “double jeopardy principles are

24 No. 34233-6-III State v. Muhammad

violated if the defendant is convicted of offenses that are identical in fact and in law.” In

re Personal Restraint of Borrero,

(2007). Going further,

If the language of the criminal statutes under which the defendant has been punished does not expressly disclose legislative intent with respect to multiple punishments, the court then considers principles of statutory construction to determine whether multiple punishments are authorized. . . . If each offense contains an element not contained in the other, the offenses are not the same; if each offense requires proof of a fact that the other does not, the court presumes the offenses are not the same.

In re Personal Restraint of Borrero,

. Under this test, the facts of

the case gain the same prominence as the legal definitions of the respective crimes.

Under the law half of the same evidence test, a double jeopardy violation occurs

when the evidence required to support a conviction on one charge would suffice to

warrant a conviction on the other. State v. Freeman,

(2005). But,

when each offense requires proof of an element not required in the other and when proof

of one offense does not necessarily prove the other, the offenses are not the same and

multiple convictions are permitted. State v. Louis,

(2005).

In Bisir Muhammad’s prosecution, the first degree murder charge incorporated the

first degree rape charge. The State needed to prove all elements of first degree rape in

order to convict on first degree murder. Therefore, convicting Muhammad of first degree

rape did not require proof of an element not needed to convict of first degree murder. If

our analysis ended here, the two convictions breached double jeopardy restrictions. In

fact one of the decisions cited by Bisir Muhammad, State v. Jackman,

25 No. 34233-6-III State v. Muhammad

(2006), ends the double jeopardy analysis with the Blockburger test. Nevertheless, other

Washington Supreme Court decisions instruct us to continue with the analysis. We

review those decisions shortly.

The State argues that the proof between first degree felony murder and first degree

rape differs because an accused may commit felony murder by attempted rape. The State

need not establish a completed rape.

We agree with the State that, when one of the two crimes is an attempt crime, the

double jeopardy test requires further refinement. In re Personal Restraint of Borrero,

(2007). This refinement results from the criminal attempt statute

containing the element that the person performs an act that constitutes “a substantial step

toward the commission of that crime.” RCW 9A.28.020(1). Only by examining the

actual facts constituting the “‘substantial step’” can the determination be made that the

defendant’s double jeopardy rights have been violated. In re Personal Restraint of

Borrero,

.

We discern no need to distinguish between a felony murder statute that permits a

conviction based on an attempted predicate crime, as opposed to a completed predicate

crime, for double jeopardy purposes in this appeal. We consider any such distinction

irrelevant when the State charges the defendant with a completed felony. The State

charged and convicted Bisir Muhammad with a consummated rape. We find no decision

that performs a refined analysis of the Blockburger test when felony murder could be

26 No. 34233-6-III State v. Muhammad

committed by an inchoate crime, but the accused committed a completed crime. The

State’s argument would require the refined scrutiny in every case involving Washington’s

first degree felony murder statute.

Washington’s version of the Blockburger test does not end a court’s analysis. The

mere fact that the State employs the same conduct to prove each crime is not dispositive.

State v. Freeman,

(2005). Although the Blockburger test or same

evidence test probe indicators of legislative intent, the test does not always dispose of the

question of whether two offenses are the same. State v. Calle,

(1995).

Washington courts rely on additional indicia of legislative intent. State v. Calle,

. In addition, the Washington Legislature holds the power to criminalize

every step leading to the greater crime and the crime itself. Whalen v. United States,

,

,

(1980); State v. Freeman,

(2005). So we continue with our statutory construction, not the application

of constitutional tenets.

In the last of many steps behind double jeopardy scrutiny, we still examine the

respective criminal statutes’ language and their history to resolve whether the legislature

intended to punish for separate crimes, even though committed by a single act. State v.

Calle,

. The differing purposes served by the respective statutes and

their location in different chapters of the criminal code comprise evidence in part of the

legislature’s intent to punish the two acts as separate offenses. State v. Calle,

No. 34233-6-III State v. Muhammad

at 780. At this stage of the double jeopardy review, we may return to other evidence of

legislative intent, including the statutes’ historical development, legislative history,

location in the criminal code, or the differing purposes for which they were enacted.

State v. Freeman,

(2005). We may discern legislative intent from the

legislative history, the structure of the statutes, the fact the two statutes seek to eliminate

different evils, or any other source of legislative intent. Ball v. United States,

,

,

(1985); State v. Calle,

-

78. If each criminal statute serves an independent purpose or effect, the State may punish

violations of the two statutes as separate offenses. State v. Johnson,

,

(1979). The process is recursive, returning to the legislature’s intent again

and again. State v. Freeman,

. In State v. Calle, the Washington State

Supreme Court upheld convictions of rape and incest on the rationales that the two crimes

lay in distinct chapters within the criminal code and each crime served to protect different

societal interests, despite the same act forming the basis for each crime.

The statutes prohibiting murder and rape serve discrete goals. Chapter 9A.36

RCW, the code chapter creating homicide crimes, serves the public policy favoring the

protection of human life. Gardner v. Loomis Armored Inc.,

,

(1996). One of society’s most basic tasks is that of protecting the lives of its

citizens and one of the most basic ways in which it achieves the task is through criminal

laws against murder. Gregg v. Georgia,

,

,

No. 34233-6-III State v. Muhammad

859 (1976) (White, J., concurring).

Chapter 9A.44 RCW, the chapter creating sex crimes, primarily seeks to prohibit

acts of unlawful sexual intercourse, with punishment dependent on the accompanying

circumstances. State v. Calle,

(1995). The focus of the crime is not

simply sexual violation, but also the fear, degradation and physical injury accompanying

that act. Helen Glenn Tutt, Comment, Washington’s Attempt To View Sexual Assault as

More Than a “Violation” of the Moral Woman-The Revision of the Rape Laws, 11 GONZ.

L. REV. 145, 155 (1975). Thus, the two criminal statutes violated by Bisir Muhammad

serve distinct purposes that command two convictions.

We observe that Bisir Muhammad’s rape of Ina Clare Richardson raised his crime

from second degree murder to first degree murder. Thus, the rape formed an essential

element of the murder charge. In State v. Freeman,

(2005), the state high

court noted that convictions for the crimes of first degree robbery and second degree

assault generally could not stand because the assault raised the robbery from second

degree to first degree. Nevertheless, under the facts of the appeal, the Supreme Court

declined to strike the predicate crime because the victim of the crime suffered injuries

from the assault distinct from any injury suffered by the robbery. Ina Clare Richardson

suffered injuries from the rape distinct from the mortal harm incurring from the murder.

Bisir Muhammad maintains that Harris v. Oklahoma,

,

,

(1977) supports his position that felony murder cannot be

29 No. 34233-6-III State v. Muhammad

punished in conjunction with the predicate felony that forms the basis of the murder

charge. We disagree. In Harris, the United States Supreme Court held the Fifth

Amendment prohibited a separate trial and conviction for robbery, a predicate of felony

murder, after the State convicted the accused of the murder. Harris does not address, let

alone prohibit, trying and convicting a defendant of both felony murder and the predicate

felony during the same trial. The Harris Court relied on the rule of law that, when

conviction of a greater crime cannot be had without conviction of the lesser crime, double

jeopardy bars prosecution for the lesser crime after conviction of the greater one. The

State charged Bisir Muhammad with the predicate crime in the same prosecution as the

felony murder.

A United States Supreme Court decision with closer facts is Whalen v. United

States,

(1980). The District of Columbia convicted Thomas Whalen of rape

and killing the same victim during the perpetration of the rape. Rape was one of six

predicate crimes that raised the murder to first degree murder. The United States

Congress adopted the criminal code for the district, such that the United States Supreme

Court sat more as the highest level of a state court system than as the Supreme Court of a

nation. The District of Columbia Court of Appeals rejected Whalen’s argument that the

rape conviction merged, based on the double jeopardy clause, with the first degree

murder conviction. The Supreme Court disagreed based on a District of Columbia statute

enacted by Congress that precluded multiple punishments for two offenses arising out of

30 No. 34233-6-III State v. Muhammad

the same criminal transaction unless each offense required proof of a fact that the other

did not. The Supreme Court reasoned that the statute ended the double jeopardy analysis

with the Blockburger test, such that the Court refused to analyze further the legislative

intent of Congress. The Court vacated the rape conviction since a conviction for killing

in the course of the rape could not be had without proving all the elements of the offense

of rape. We decline to follow Whalen since Washington has no similar statute.

Merger

When the accused challenges two convictions on double jeopardy grounds, the

accused typically also challenges the convictions on the related doctrine of merger. Bisir

Muhammad follows this practice.

Courts sometimes merge the merger doctrine with double jeopardy. Some courts

often write that, because of double jeopardy constraints, the two crimes “merge.” State v.

Johnson,

(1979). Nevertheless, the law considers the two doctrines

distinct despite both relying on legislative intent.

The merger doctrine serves as another tool of statutory construction designed to

prevent the pyramiding of charges on a criminal defendant. State v. Saunders,

,

(2004). Similar to the double jeopardy analysis, courts

employ the doctrine to resolve whether the legislature intends multiple punishments to

apply to particular offenses. State v. Saunders,

. Merger applies

when proof of one crime proscribed in one section of the criminal code elevates a second

31 No. 34233-6-III State v. Muhammad

crime found in another section to a higher degree. State v. Saunders,

. Generally a predicate offense will merge into the second crime, and the court may

not punish the predicate crime separately. State v. Saunders,

.

An exception to the merger doctrine lies when the predicate and charged crimes do

not intertwine. State v. Saunders,

. Even if two convictions appear

to merge on an abstract level, they may be punished separately if the defendant’s conduct

forming one crime demonstrates an independent purpose or effect from the second crime.

State v. Kier,

,

(2008). The merger doctrine applies

when the legislature clearly indicates that it did not intend to impose multiple

punishments for a single act that violates several statutory provisions. State v. Vladovic,

,

(1983).

The merger doctrine applies when one crime is incidental to the commission of the

second crime. State v. Harris,

,

(2012). To the

contrary, if the predicate crime injures the person or property of the victim or others in a

separate and distinct manner from the crime for which it serves as an element, the crimes

do not merge. State v. Harris,

.

The merger doctrine applies at the time of sentencing and its purpose is to correct

violations of the prohibition of double jeopardy. State v. Parmelee,

,

(2001). As such, the doctrine aims at providing remedies. State v.

Chesnokov,

,

(2013).

32 No. 34233-6-III State v. Muhammad

Bisir Muhammad astutely relies on State v. Fagundes,

,

(1980), in which this court merged the predicate felonies of first degree rape and first

degree kidnapping into a felony murder conviction. We acknowledged the underlying

felony served additional purposes apart from simply elevating the degree of seriousness

for the murder charge, but nonetheless merged the convictions since proof of the

underlying felony was necessary to prove the felony murder.

Bisir Muhammad also relies on State v. Williams,

,

(2006), where a predicate robbery charge merged with felony murder because the murder

occurred in the immediate flight from the robbery and served to help facilitate an escape.

Nevertheless, this court clarified that the robbery would not merge if it was “merely

incidental” to the homicide.

State v. Fagundes and State v. Williams support Bisir Muhammad’s request for

merger. Nevertheless, we follow the teachings of State v. Vladovic,

(1983) instead. Vladovic followed Fagundes by three years. In Vladovic, our high court

declared: “if the offenses committed in a particular case have independent purposes or

effects, they may be punished separately.” 99 Wn.2d at 421.

We also find other Washington decisions that support rejection of merger in Bisir

Muhammad’s appeal. In State v. Saunders,

(2004), this court held that

convictions for felony murder and first degree rape did not merge when the murder was

separate and distinct from the rape. Ray Saunders and Leanna Williams restrained

33 No. 34233-6-III State v. Muhammad

Marcia Grissett with handcuffs and leg shackles. Saunders attempted to force Grissett to

perform oral sex on him, and Williams anally raped Grissett with a television antenna.

Ultimately, Saunders stabbed Grissett in the chest with a knife and either Saunders or

Williams strangled Grissett, who died from the stabbing and the simultaneous asphyxia

from strangulation. On appeal, similar to Bisir Muhammad, Saunders argued that the two

convictions should merge.

To determine whether Ray Saunders’ two convictions sufficiently intertwined for

merger to apply, this court considered whether the crimes occurred almost

contemporaneously in time and place, whether the sole purpose of one crime facilitated

the other, and whether the victim suffered any injury independent of or greater than the

injury associated with the predicate crime. Even though the acts occurred at the same

time and place, the court did not merge the two convictions. The court reasoned that

Marcia Grissett sustained injuries independent of and exceeding that necessary to commit

the murder and found the rape did not facilitate the murder.

In State v. Peyton,

,

(1981), William Peyton and

his associates robbed a bank. After fleeing the bank in one vehicle, the robbers drove the

vehicle to a nearby location, abandoned the vehicle, and entered and continued the flight

in a second vehicle. The group eventually abandoned the second vehicle and ran across

fields, where they engaged in a shooting match with pursuing officers. A bullet fired by

Peyton killed one officer. The court held that the underlying robbery that served as the

34 No. 34233-6-III State v. Muhammad

predicate crime for first degree murder did not merge in the murder conviction because

the two crimes did not intertwine.

Bisir Muhammad's rape of Ina Clare Richardson was not integral to her killing.

Although Richardson's murder silenced her from reporting the rape, the murder did not

effectuate or coincide with the rape. Following the reasoning of Vladovic, Peyton, and

Saunders, the two crimes had independent purposes and effects. Ina Richardson suffered

many injuries from her rape including a laceration in her vaginal canal that caused

bleeding, and injuries to her thighs, knees, legs, right buttock and left groin region. These

injuries differed from the injuries to her neck and eyes that resulted from being strangled

to death. As a result, the two crimes may be punished separately. We refuse to merge

the first degree murder with the first degree rape conviction.

CONCLUSIONS

We affirm Bisir Muhammad's convictions for first degree murder and first degree

rape. Because the State does not seek an award of appellate costs, we deny an award of

costs to the prevailing party.

WE CONCUR:

1 Siddoway, J.

35