State v. Vladovic

Utter, J.

(concurring in part, dissenting in part) — I dissent from the majority's affirmance of the defendant's kidnapping convictions. The defendant will spend a substantial part of the remainder of his life in institutions and under supervision for the robbery and attempted robbery convictions upon which we all agree. The majority's conclusion is not necessary to protect society from the defendant.

The majority's analysis has the effect of adopting a construction of our kidnapping statute which we have carefully avoided in the past and which produces the absurd result of making every armed robber automatically guilty of first degree kidnapping. Our own cases, those of a majority of other jurisdictions, and ordinary principles of statutory construction demand a far more constrained reading. I *427would therefore retain the rule recognized by most other jurisdictions, and previously recognized by this court, that a restraint which is merely incidental to some other crime cannot serve as the basis for conviction of kidnapping. To hold otherwise will lead to gross inequities which the legislative history shows were not intended.

I

Initially it must be recognized that there are several forms of merger. One is the rule that, absent an express indication of contrary legislative intent, an offense which is an element of and merely incidental to another offense merges and is not separably punishable (hereinafter "general merger"). See, e.g., State v. Johnson, 92 Wn.2d 671, 680, 600 P.2d 1249 (1979) (assault and kidnapping merged into first degree rape) (hereinafter Johnson I); State v. Springfield, 28 Wn. App. 446, 452, 624 P.2d 208 (1981) (second degree assault merged into first degree robbery); cf. State v. Workman, 90 Wn.2d 443, 454, 584 P.2d 382 (1978) (firearm enhancement statute not applicable to conviction of first degree robbery committed while armed with a deadly weapon). This rule is predicated on a presumption that when the Legislature has incorporated one offense into another to create or enhance the degree of the latter, it does not intend to allow separate punishment for the incorporated offense. Johnson I, at 676. The rule also draws support from the rule of lenity, which requires us, where possible, to construe criminal statutes so as to minimize the penalty imposed. See State v. Sass, 94 Wn.2d 721, 726, 620 P.2d 79 (1980); State v. Workman, supra at 454.

The majority recognizes this first form of merger but correctly concludes that it does not apply to the facts of this case. The "abduct[ions]" which serve as a basis for the four kidnapping convictions, i.e., forcing four employees by means of deadly force to lie upon the floor and then binding them, were not necessary to prove either the first degree robbery or first degree attempted robbery of the manager, Mr. Jensen. Proof of the latter two offenses, as charged in *428the information in the present case, required proof only that the defendant displayed to Mr. Jensen what appeared to be a firearm or other deadly weapon.

The majority almost entirely ignores a second well established form of merger, however, which is peculiar to the law of kidnapping. That is the rule that forced movement of a person cannot support a conviction for kidnapping if it is merely incidental to some other offense (hereinafter "kidnapping merger"). See People v. Daniels, 71 Cal. 2d 1119, 1139, 459 P.2d 225, 80 Cal. Rptr. 897, 43 A.L.R.3d 677 (1969); People v. Adams, 34 Mich. App. 546, 567, 192 N.W.2d 19 (1971), aff'd, 389 Mich. 222, 205 N.W.2d 415 (1973) (hereinafter Adams I); People v. Levy, 15 N.Y.2d 159, 164-65, 204 N.E.2d 842, 256 N.Y.S.2d 793 (1965). The rule applies equally to an incidental detention. See Adams I, at 557; State v. Logan, 60 Ohio St. 2d 126, 134-35, 397 N.E.2d 1345 (1979). Though the rule has been rejected by some jurisdictions (see, e.g., Long v. State, 332 A.2d 146, 147 (Del. 1975)), it represents both the majority rule and the modern trend. Government of V.I. v. Berry, 604 F.2d 221, 225 (3d Cir. 1979) and cases cited therein; Survey of Washington Law, Criminal Law: Merger of Crimes, 17 Gonz. L. Rev. 547, 550 (1982). In a number of jurisdictions, the kidnapping merger rule has been adopted only after long years of painful experience with a contrary rule (see, e.g., Daniels, at 1125-32, 1139-40) and a virtual volley of caustic commentary. See, e.g., Enright, California's Aggravated Kidnapping Statute — A Need for Revision, 4 San Diego L. Rev. 285 (1967); Note, Kidnapping and the Element of Asportation, 35 S. Cal. L. Rev. 212 (1962); Packer, The Case for Revision of the Penal Code, 13 Stan. L. Rev. 252, 259 (1961); 110 U. Pa. L. Rev. 293 (1961); Note, A Rationale for the Law of Kidnapping, 53 Colum. L. Rev. 540, 556-58 (1953); Comment, Robbery Becomes Kid-naping, 3 Stan. L. Rev. 156 (1950).

Kidnapping merger differs fundamentally from general merger in that it is part of the definition of the crime, i.e., no kidnapping exists absent a detention or movement *429beyond that merely incidental to another crime. In contrast, general merger limits only the crimes for which conviction may lie. Both crimes have been committed, but the State may convict the defendant of only one. Since both have been committed, however, the State may choose which to charge.

Like general merger, on the other hand, kidnapping merger is based on standard principles of statutory construction. One of those principles is that a statute should be construed so as not to produce an absurd result. See, e.g., Blondheim v. State, 84 Wn.2d 874, 879, 529 P.2d 1096 (1975). To refuse to read the kidnapping merger rule into a kidnapping statute produces precisely such a result. Daniels, at 1130; Adams I, at 557; Packer, The Case for Revision of the Penal Code, 13 Stan. L. Rev. 252, 259 (1961). Several offenses, including robbery, can scarcely be committed without at least some incidental restraint or movement. Daniels, at 1134; Adams I, at 560; People v. Levy, supra at 164. To not merge such incidental conduct into the underlying offense makes every person who commits robbery with a deadly weapon also guilty of first degree kidnapping. The armed robber who orders his victim to momentarily remain motionless while his wallet is removed becomes guilty of, in addition to first degree robbery, the same offense as the infamous kidnapper of the son of Charles Lindbergh 50 years ago.4

Since kidnapping is recognized as one of the most serious of crimes and is punished as such, the additional punishment which may be imposed, absent merger, is far from inconsequential. Levy, at 163-64; Comment, Room-to-*430Room Movement: A Risk Rationale for Aggravated Kid-naping, 11 Stan. L. Rev. 554, 554-55 (1959); See RCW 9A.40.020 (first degree kidnapping a class A felony). Yet there need be absolutely no additional conduct beyond the armed robbery for which punishment is already to be imposed. Historically, such "pyramiding" of a kidnapping charge upon that for the underlying offense was a common abuse and has been roundly condemned by the commentators. See, e.g., Model Penal Code § 212.1, comment 2, at 220-22 (1980); Note, A Rationale of the Law of Kidnapping, 53 Colum. L. Rev. 540, 556-58 (1953). Indeed, one court has suggested that any kidnapping statute broad enough to allow this practice would be unconstitutionally vague because of the broad discretion given to judges and juries. See Adams I, at 559-60.

While the Legislature is certainly entitled to enhance punishment for robbery committed with a deadly weapon, it has already done so by classifying it as robbery in the first degree. Cf. State v. Workman, supra at 453 (firearm enhancement statute not intended to apply to robbery convictions because use of deadly weapons already taken into consideration by statutory classification of robbery). We recognized in Johnson I that the Legislature's enactment of RCW Title 9A, with its more clearly defined classification of crimes by degree, was intended to eliminate the need to enhance punishment by "pyramiding" charges. Johnson I, at 675-76. It is our duty to give effect to this intent.

Generally, a statute should be construed in light of the purposes for which it was enacted. State v. Coyle, 95 Wn.2d 1, 5, 621 P.2d 1256 (1980). With respect to kidnapping, this principle of construction is especially pertinent because of the potential overlap between kidnapping and other statutes.

A salient consideration is that virtually all conduct within the scope of kidnapping law is punishable under some other criminal provision: e.g., extortion, homicide, assault, rape, robbery, statutory rape, contributing to the delinquency of a minor, sex perversion and compulsory *431prostitution. Consequently, the practical effect of kidnapping law is to permit the imposition of additional sanctions when one of these other crimes is accompanied by a detention and asportation. Kidnapping law, therefore, is defensible only if an asportation or detention significantly increases the dangerousness or undesirability of the defendant's behavior.

Note, A Rationale of the Law of Kidnapping, 53 Colum. L. Rev. 540, 556 (1953). Separate punishment for kidnapping is necessary only to punish conduct not already included within other offenses, especially now that the Legislature has independently provided for enhancement by creating clearly defined degrees of most major offenses.

What little legislative history is available also suggests approval of the kidnapping merger rule. Our kidnapping statute was patterned on the New York statute and our definition of "abduct" is worded almost identically. See Washington State Crim. Just. Training Comm'n, Revised Criminal Code Training and Seminar Manual, at 9A.40.010-1 (compiled and edited by G. Golob & G. Mooney 1976) (hereinafter Training Manual); compare New York Penal Law § 135.00 (McKinney 1975) with RCW 9A.40.010(2). The official comment attached to the New York statute described the kidnapping statute as intended to encompass only those restraints "savoring strongly of the substantial removal, isolation and/or violence usually associated with genuine kidnapping." Comment, New York Penal Law § 135.00 (McKinney 1975). Those involved in drafting our statute were cognizant of and approved this comment. See Training Manual, at 9A.40.010-2. As the New York Court of Appeals later recognized (see People v. Cassidy, 40 N.Y.2d 763, 766, 358 N.E.2d 870, 390 N.Y.S.2d 45 (1976)), this comment evidences a legislative acceptance of the kidnapping merger rule.

Kidnapping merger is also mandated by the rule of lenity. As noted above, that rule requires that, in the absence of contrary legislative intent, we construe criminal statutes so as to minimize punishment. State v. Sass, supra at 726; *432State v. Workman, supra at 454. Failure to read the kidnapping merger rule into our statute permits the imposition of multiple punishment for what is essentially a single act. This is in stark conflict with the rule of lenity.

Incidental restraint and movement during the commission of some other crime do not bear the true indicia of kidnapping. The experience of other jurisdictions, basic principles of statutory construction, and common sense all compel recognition of the kidnapping merger rule.

II

Our prior cases have not, as the majority apparently contends, adopted solely the general merger rule and rejected the kidnapping merger rule. In fact, we have expressly enunciated both rules and have rejected neither.

The first case in which we applied rules of merger was Johnson I. In that case, the defendant was convicted of first degree rape, assault, and kidnapping, despite the fact that the assault and kidnapping were incidental to the rape. Johnson I, at 672, 681. We reversed the convictions for assault and kidnapping on the ground that they were merged into the first degree rape.

Because first degree rape, as charged in Johnson I, included kidnapping or the use of deadly force (which would constitute assault) as an element (Johnson I, at 674, 681), the general merger rule applied. Indeed, that rule was necessary to merge the assault. At the same time, however, we recognized the historical abuse of kidnapping statutes and cited with approval Daniels, Adams I, and Levy, all of which applied the kidnapping merger rule. Johnson I, at 676. Thus, we gave at least tacit recognition to both merger rules in Johnson I.

In two later cases, we expressly recognized the kidnapping merger rule. The first of those was State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980). In that case, the defendant had been charged with aggravated first degree murder committed in the furtherance of either rape or kidnapping. Green, at 219. We noted that this required separate proof *433of either the crime of rape or the crime of kidnapping. Green, at 219-20. We then concluded that there was insufficient evidence to support a finding of kidnapping. Green, at 228.

Our conclusion in Green was not, however, based solely on the lack of any restraint but was also based on the fact that what restraint and movement had taken place was incidental to the murder.

Moreover, although appellant lifted and moved the victim to the apartment's exterior loading area, it is clear these events were actually an integral part of and not independent of the underlying homicide. While movement of the victim occurred, the mere incidental restraint and movement of a victim which might occur during the course of a homicide are not, standing alone, indicia of a true kidnapping. See State v. Johnson, 92 Wn.2d 671, 676, 600 P.2d 1249 (1979).

Green, at 226-27. We then cited People v. Adams, 389 Mich. 222, 236, 205 N.W.2d 415 (1973) (hereinafter Adams II) and Levy for the view that "a technical 'kidnapping' [merges] when that 'kidnapping' is merely incidental to the commission of another crime." Green, at 227. This explicit statement and application of the kidnapping merger rule is completely ignored by the majority.

We also expressly recognized the kidnapping merger rule in State v. Allen, 94 Wn.2d 860, 621 P.2d 143 (1980). That case involved precisely the same issue presented by the present case — whether a kidnapping merged into a robbery. Allen, at 862. Citing Johnson I and Green, we stated that "[a]ny incidental abduction or restraint . . . during [the robbery] would merge into the robbery as a matter of law." Allen, at 864. The majority may be correct in pointing out that this is technically dictum because we then concluded that the abduction in that case was not incidental. See majority, at 420. It is dictum of the strongest sort, however, for without it we would never even have had to reach the question of whether the abduction was incidental. Moreover, contrary to the majority's contention, the Allen dictum is entirely consistent with Johnson I, as well as Green *434and the kidnapping merger cases in other jurisdictions.

Neither is the Allen dictum, or the kidnapping merger rule in general, inconsistent with State v. Johnson, 96 Wn.2d 926, 639 P.2d 1332 (1982) (hereinafter Johnson II). Since that case involved only convictions for first degree statutory rape and indecent liberties (Johnson II, at 927), the kidnapping merger rule was inapposite. Though some courts have vaguely suggested otherwise by their analysis (see, e.g., State v. Penn, 32 Wn. App. 911, 915, 650 P.2d 1111 (1982)), the kidnapping merger rule is limited to kidnapping. The unique nature of kidnapping's near automatic inclusion within several other offenses and the historical abuse of kidnapping statutes merit a rule peculiar to kidnapping that does not extend to other offenses.5 For this reason, it was unnecessary to even discuss the kidnapping merger rule and hence we properly avoided any discussion of it or Allen and Green.

It was necessary, however, to discuss Johnson I, for that case applied not only the kidnapping merger rule but also the general merger rule. We thus made clear that the general merger rule required not only that the merging crime be incidental to another but also that it be a necessary element. See Johnson II, at 936. This is the source of the language quoted by the majority, at pages 419-20. It is an analysis only of the general merger rule. It has no relevance to the kidnapping merger rule — otherwise, we would have been required to overrule Green and our dictum in Allen. Yet we did not do so.

All of our cases can thus be reconciled. They recognize two types of merger. One, which I have termed general merger, applies to all offenses. The test for general merger is two-pronged — an offense merges into another offense if it is both incidental to and an element of the latter offense. *435In the case of kidnapping, however, the second prong of this test is eliminated — any incidental kidnapping merges. This special rule of kidnapping merger is justified by the broad scope of kidnapping statutes and their historical abuse.

Ill

Recognition of the kidnapping merger rule does not immediately dispose of the present case. The State argues that even if we apply the kidnapping merger rule the kidnapping here was not incidental to the robbery and thus does not merge.

Initially, it should be noted that the mere fact that the persons who were restrained were not victims of the robbery or attempted robbery does not preclude the possibility of merger. There exist numerous examples of cases applying the kidnapping merger rule to detention or movement of several employees during robbery of a business. See, e.g., People v. Adams, 4 Cal. 3d 429, 482 P.2d 657, 93 Cal. Rptr. 745 (1971); People v. Smith, 4 Cal. 3d 426, 482 P.2d 655, 93 Cal. Rptr. 743 (1971); Friend v. State, 385 So. 2d 696, 697 (Fla. Dist. Ct. App. 1980). Similarly, the rule has been applied where the companion of a robbery victim has been restrained. See, e.g., Seay v. Commonwealth, 609 S.W.2d 128, 130 (Ky. 1980) (mother and two sons tied up, but one of sons not robbed; held no kidnapping). The situation in the instant case is analogous to both of these fact situations. Four employees were tied up while Mr. Vladovic attempted to rob the department in which they were working and while he did rob another employee, Mr. Jensen.

Nonetheless, the restraint here may have gone beyond the incidental. The robbers did not merely hold the employees in one place while executing the robbery but made them lie on the floor, tied them up, and taped their eyes shut. This conduct may well have gone beyond the "merely incidental" to possess "a separate and distinct existence" from the robbery. See Allen, at 864 n.1.

Whether a restraint is or is not incidental must be deter*436mined "in light of the totality of surrounding circumstances." Green, at 227. The key question is whether the restraint is such as "'significantly increases the dangerousness or undesirability of the defendant's behavior.'" Government of V.I. v. Berry, 604 F.2d 221, 227 (3d Cir. 1979). In Berry, the court set forth four factors to be considered in making this determination: (1) the duration of the restraint; (2) whether the restraint occurred during the commission of the separate offense; (3) whether the restraint is inherent in the separate offense; and (4) whether the restraint creates a significant danger independent of that posed by the separate offense. Berry, at 227. Accord, People v. Smith, 91 Ill. App. 3d 523, 529, 414 N.E.2d 1117 (1980). I would adopt the test and factors enunciated in Berry.

Though in some cases the question of whether this test is met may be clear as a matter of law (see, e.g., Allen, at 865), it is ordinarily a question of fact for the jury (Allen, at 865; Adams II, at 241-42). Applying the Berry factors to the present case, I find it to be in the gray area. While the restraint was of relatively short duration and lasted only during the robbery, it went somewhat further than necessary to the robbery and significantly increased the employees' discomfort if not their danger. Other courts faced with similar fact situations have divided on the question of whether the restraint was incidental. Compare Friend v. State, supra at 697 (four employees forced into bathroom and told to stay; held incidental) and Seay v. Commonwealth, supra at 130-31 (mother and two sons tied up; held incidental) with State v. Williams, 226 Kan. 688, 694-95, 602 P.2d 1332 (1979) (defendant bound and gagged victims, placed chairs over them, and placed desk across door of room they were in; held not incidental) and State v. Fulcher, 294 N.C. 503, 524, 243 S.E.2d 33s8 (1978) (rape victims tied up prior to rape; held not incidental).

Since the present case is in the gray area, I would remand for a new trial on the kidnapping charges. In the *437circumstances of this case,6 Mr. Vladovic would be collaterally estopped from contesting facts necessarily put in issue and decided adversely to him by his convictions of robbery and attempted robbery. See, e.g., United States v. Cola-curcio, 514 F.2d 1, 6 (9th Cir. 1975). At the new trial Mr. Vladovic would, however, be entitled to an instruction directing the jury that a restraint by deadly force is insufficient to support a conviction of kidnapping if it is incidental to another crime. The term incidental should be defined in terms of the test and factors enunciated in Berry.

IV

The question of whether the robbery in the present case could merge into one or more of the kidnappings is not properly before us here and I will not address it. The majority's analysis of the issue is nothing but dictum and will not be binding upon us in later cases. I will therefore only note that I would look to Berry for guidance on the question of whether the restraint is incidental. I also have serious doubts as to whether the fact that the crimes involved different victims is dispositive, as the majority apparently concludes it is.

I dissent.

Williams, C.J., and Dore and Pearson, JJ., concur with Utter, J.

Reconsideration denied June 27, 1983.

Perhaps the ultimate actual example is the California case of People v. Wein, 50 Cal. 2d 383, 326 P.2d 457 (1958), overruled by People v. Daniels, supra at 1140. In that case, the California Supreme Court upheld, among others, a kidnapping conviction based solely on the "movement” of a rape victim from a standing position next to the bed onto the bed itself. Wein, at 412 (Carter, J., dissenting). Professor Packer justifiably termed this the "reductio ad absurdum case". See Packer, The Case for Revision of the Penal Code, 13 Stan. L. Rev. 252, 259 n.41 (1961).

Some courts have extended the rule to the crime of unlawful imprisonment since that offense is basically a lesser form of kidnapping. See, e.g., Government of V.I. v. Berry, 604 F.2d 221, 227 n.13 (3d Cir. 1979). Others, however, have been unwilling to go even this far. See, e.g., People v. Smith, 91 Ill. App. 3d 523, 529, 414 N.E.2d 1117 (1980).

While most courts have recognized that collateral estoppel can be applied against a defendant in a criminal prosecution (but see State v. Ingenito, 87 N.J. 204, 217, 432 A.2d 912 (1981)), limitations to such application have been suggested. See, e.g., People v. Plevy, 52 N.Y.2d 58, 65-66, 417 N.E.2d 518, 436 N.Y.S.2d 224 (1980) (collateral estoppel cannot be applied on issues raised by defendant's testimony in second trial where defendant exercised his right not to testify in first trial); Comment, The Use of Collateral Estoppel Against the Accused, 69 Colum. L. Rev. 515, 523-24 (1969) (collateral estoppel against defendant should be permitted only when the State can show cause for separate trials and first trial was not for lesser offense). None of the suggested limitations are pertinent here.