State v. Taylor

• Decision Date: 02 January 1979
• Docket Number: No. 5608-I,5608-I
• Citation: 22 Wn.App. 308,589 P.2d 1250
• Parties: STATE of Washington, Respondent, v. Gary James TAYLOR, Appellant.
• Court: Washington Court of Appeals

Page 308

22 Wn.App. 308

589 P.2d 1250

STATE of Washington, Respondent, v. Gary James TAYLOR, Appellant.

No. 5608-I.

Court of Appeals of Washington, Division 1.

Jan. 2, 1979.

Seattle-King County Public Defender Assn. Robert C. Boruchowitz, Seattle, for appellant.

Christopher T. Bayley, King County Pros. Atty., Betsy Hollingsworth, Deputy Pros. Atty., Rich Biriny, Legal Intern, Alan S. Paja, Legal Intern, for respondent.

JAMES, Judge.

Defendant Gary James Taylor was convicted of two counts of first degree murder. On appeal, he challenges his convictions and the imposition of two consecutive life terms. We affirm.

On August 21, 1974, an elderly couple were found shot and killed in their home. The couple's dog had also been killed and the home had been ransacked and burned. Taylor and a codefendant were arrested and brought to trial on two counts of first degree murder and one count of first degree arson.

After the prosecution made its opening statement, plea bargaining resulted in Taylor's entering pleas of guilty to one count of first degree murder and one count of second degree murder. The arson charge was dismissed with prejudice.

Taylor subsequently petitioned to withdraw his guilty pleas. His petition was denied and he was sentenced to life imprisonment on each count. The terms were to run concurrently.

This court granted Taylor's petition for post-conviction relief pursuant to former CrR 7.7. ¹ Upon remand, a superior court judge found that Taylor had been given erroneous advice concerning mandatory minimum terms and vacated the convictions and sentences.

On retrial, the State filed an information which again charged Taylor with two counts of first degree murder and one count of first degree arson. Both Taylor and a companion (codefendant at the first trial) testified at the second trial. They testified that, although Taylor was present at the scene, his participation in the crimes was coerced by his companion. The jury returned verdicts of guilty on the two murder counts and not guilty on the arson charge. Taylor was again sentenced to life imprisonment on each murder count. However, the judge who presided at the second trial ordered that the terms run consecutively, not concurrently.

Taylor's principal assignment of error is that, on retrial, he was denied his constitutional immunity from double jeopardy by (1) again being charged with first degree murder for the homicide to which he had pleaded guilty to second degree murder, and (2) again being charged with arson that charge having been dismissed with prejudice.

We first consider the refiling of the first degree murder charges. In State v. Schoel, 54 Wash.2d 388, 341 P.2d 481 (1959), our Supreme Court expressly overruled State v. Ash, 68 Wash. 194, 122 P. 995 (1912) and held that a jury conviction of second degree murder barred the refiling of a charge of first degree murder upon retrial. The court adopted the rationale of the United States Supreme Court in Green v. United States, 355 U.S. 184, 190, 78 S.Ct. 221, 225, 2 L.Ed. 199 (1957) that when a jury is given the choice of finding an accused guilty of either first or second degree murder, a conviction of the lesser degree is an "implicit acquittal on the charge of first degree murder."

Taylor's challenge, however, presents a question of first impression for this jurisdiction: Is the acceptance by the court of a guilty plea to a lesser included offense the constitutional equivalent of a jury's "implicit acquittal" on the greater charge?

The precise question has not been considered by the United States Supreme Court. Antithetic conclusions have been reached by jurisdictions which have considered the question. We are persuaded that the better-reasoned decisions are those which hold that the acceptance of a guilty plea to a lesser included offense is not, for double jeopardy purposes, an implicit acquittal on the greater charge.

In Green v. United States, supra at 190, 78 S.Ct. at 225, Justice Black's graphic rhetoric expresses double jeopardy's philosophical basis.

Green was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gantlet once on that charge and the jury refused to convict him. When given the choice between finding him guilty of either first or second degree murder it chose the latter. In this situation the great majority of cases in this country have regarded the jury's verdict as an implicit acquittal on the charge of first degree murder.

(Footnote omitted.)

Clearly, Taylor was in jeopardy on each of the two murder counts as well as the arson count at the time his first trial was aborted by his bargained pleas. The beginning point of any analysis of a double jeopardy claim is to determine whether jeopardy has attached. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); State v. Smith, 15 Wash.App. 725, 551 P.2d 765 (1976). Here, although counsel had not made their opening remarks and no witnesses had been called, jeopardy had nevertheless attached since the jury had been selected and sworn. Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963).

State v. Eldridge, 17 Wash.App. 270, 275-76, 562 P.2d 276 (1977). But whether or not the refiling of any of the charges put Taylor in "double" jeopardy must be determined by the nature and quality of the proceeding which terminated his initial jeopardy. "The dispositive question is whether the order of dismissal was tantamount to a 'judgment of not guilty.' " State v. Jubie, 15 Wash.App. 881, 885, 552 P.2d 196, 198 (1976).

Although Taylor "was in direct peril of being convicted and punished" on all three counts, he was not "forced to run the gantlet" on the question of guilt or innocence. No trier of fact "refused to convict him." Green v. United States, supra, 355 U.S. at 190, 78 S.Ct. 221. We hold that Taylor was not denied his constitutional immunity from double jeopardy by the refiling of the first degree murder charge.

Taylor also contends that the refiling of the arson charge was prohibited by his constitutional immunity from double jeopardy. He argues that by dismissing the arson charge with prejudice, "the State forever gave up its rights to proceed against (him)." He further asserts that the fact that the second trial jury found him not guilty of arson is irrelevant "(b)ecause the presence of this charge may have affected the jury's deliberations on the murder charges." We do not agree.

The fact that the State honored its plea bargain and dismissed the arson charge "with prejudice" is not significant. The question of guilt or innocence was never presented to a trier of fact. The dismissal was not "tantamount to a 'judgment of not guilty.' " State v. Jubie, supra, 15 Wash.App. at 885, 552 P.2d at 198.

Taylor further contends that the refiling of the first degree murder charge and the arson charge should also be condemned on constitutional "due process" principles. He asks that we order a new trial "with the state limited to charging second degree murder on count I and prohibited from charging arson." As in Blackledge v. Perry, 417 U.S. 21, 25, 94 S.Ct. 2098, 2101, 40 L.Ed.2d 628 (1974), Taylor's "due process arguments are derived substantially from North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, and its progeny." The due process principle is summarized in Blackledge on page 28, 94 S.Ct. on page 2102.

A person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration.

(Footnote omitted.) The key word used by the court is "retaliate." The rule of Blackledge is summarized in the following sentence on page 27, 94 S.Ct. on page 2102:

The lesson that emerges from Pearce, Colten (Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584), and Chaffin (Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714) is that the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of "vindictiveness."

Taylor has pointed to nothing in the record to suggest that the prosecution was motivated by vindictiveness.

There is no appearance of retaliation when a defendant is placed in the same position as he was in before he accepted (a) plea bargain.

United States v. Anderson, 514 F.2d 583, 588 (7th Cir. 1975).

Taylor further asserts that "due process" was denied him when the trial judge determined that the life sentences imposed on the two murder counts should run consecutively rather than concurrently as first imposed. He cites North Carolina v. Pearce, 395 U.S. 711, 725-26, 89 S.Ct. 2072, 2080-2081, 23 L.Ed.2d 656 (1969) for the principle that Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.

In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the...