Brazzel v. Washington
| Decision Date | 12 April 2007 |
| Docket Number | No. 05-36145.,05-36145. |
| Citation | 491 F.3d 976 |
| Parties | Ernest Lee BRAZZEL, Petitioner-Appellant, v. State of WASHINGTON, Respondent, v. Alice Payne, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Russell V. Leonard, Federal Public Defender, Tacoma, WA, for the appellant.
Gregory J. Rosen, Assistant Attorney General, Olympia, WA, for the appellee.
Appeal from the United States District Court for the Western District of Washington; Ronald B. Leighton, District Judge, Presiding. D.C. No. CV-04-05892-RBL.
Before: B. FLETCHER and M. MARGARET McKEOWN, Circuit Judges, and WILLIAM W. SCHWARZER,* District Judge.
Judge McKeown votes to deny the petition for rehearing en banc and Judge B. Fletcher and Judge Schwarzer so recommend. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35. The petition for rehearing en banc is denied.
The Opinion filed on April 12, 2007 is amended as follows:
On slip Opinion page 4235, line 15 , insert the following text: "a reliable inference of prejudice." Mathews, 475 U.S. at 246, 106 S.Ct. 1032.> to replace
On slip Opinion page 4235, line 26 , insert the following text after the sentence ending in the word and before the sentence beginning with the word:
On slip Opinion page 4235, line 26 , insert the following text after the word and before:
In this 28 U.S.C. § 2254 habeas appeal, Ernest Lee Brazzel challenges, as a violation of the Double Jeopardy Clause, his retrial on an attempted murder charge, after his first jury remained silent on that charge, and convicted him of a lesser alternative offense. Two different juries have now convicted Brazzel of the lesser offense, first degree assault. Both juries failed to reach the alternate and more serious charge of attempted murder. The framework for our analysis of this double jeopardy challenge is found in two Supreme Court cases—Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), and Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970).
In Green, the Supreme Court explained the doctrine of implied acquittal: when a jury convicts on a lesser alternate charge and fails to reach a verdict on the greater charge—without announcing any splits or divisions and having had a full and fair opportunity to do so—the jury's silence on the second charge is an implied acquittal. 355 U.S. at 191, 78 S.Ct. 221. A verdict of implied acquittal is final and bars a subsequent prosecution for the same offense. See id. Under Price, putting the defendant in jeopardy a second time is not necessarily harmless error or moot, even if the defendant is only convicted of the lesser crime, because "[t]he Double Jeopardy Clause . . . is cast in terms of the risk or hazard of trial and conviction, not of the ultimate legal consequences of the verdict." 398 U.S. at 331, 90 S.Ct. 1757.
Although the Washington Court of Appeals assumed that the lack of a verdict on the attempted murder charge following Brazzel's first trial was an implied acquittal, the state court grounded its denial of Brazzel's double jeopardy claim in a mootness or harmless error analysis in contravention of Price. Accordingly, because the decision was contrary to clearly established U.S. Supreme Court precedent, we reverse with instructions to grant the writ of habeas corpus. As did the Court in Price, we remand the case to enable the Washington courts "to resolve the issues pertaining to petitioner's retrial, if any such retrial is to be had." Id. at 332.
Ernest Brazzel was charged with three counts related to the repeated assault of his girlfriend in 1997 and 1998. Count I alleged attempted first degree murder or, in the alternative, first degree assault, committed between May 10 and May 16, 1998. Count II alleged second degree assault, committed between May 4 and May 11, 1998. Count III alleged second degree assault, committed between April 15 and April 22, 1998.
The jury convicted Brazzel of first degree assault on Count I, second degree assault on Count II, and second degree assault on Count III. On Count I, the jury remained silent on the first degree attempted murder charge, leaving the verdict form blank. During the jury poll, at the conclusion of their deliberations, the jurors did not claim to be hung or announce any splits or divisions. The state did not request that the jury be declared hung as to the attempted murder count; nor did the state take any other post-verdict action on the attempted murder charge. The trial judge discharged the jury, taking as final the convictions on the assault counts, and sentenced Brazzel to 456 months in prison.
After Brazzel appealed, the prosecutor conceded that a significant jury instruction unrelated to this appeal was erroneous. The case was remanded for a new trial.
The prosecutor refiled the same alternative charge as the original Count I: Attempted Murder in the First Degree "and in the alternative" Assault in the First Degree, and the various other assault charges. Brazzel moved to dismiss the attempted murder allegation on double jeopardy grounds. In response, the government argued that based on the phrasing of the first set of jury instructions, the jury's silence indicated a hung jury and not an implied acquittal.
The relevant portion of the jury instruction reads as follows:
When completing the verdict forms, you will first consider the crime of ATTEMPTED MURDER IN THE FIRST DEGREE as charged in Count I. If you unanimously agree on a verdict, you must fill in the blank provided in verdict form A the words "not guilty" or the word "guilty," according to the decision you reach. If you cannot agree on a verdict, do not fill in the blank provided in Verdict Form A.
If you find the defendant guilty on verdict form A, do not use verdict form B. If you find the defendant not guilty of the crime of ATTEMPTED MURDER IN THE FIRST DEGREE, or if after full and careful consideration of the evidence you cannot agree on that crime, you will consider the alternative crime of ASSAULT IN THE FIRST DEGREE as charged in Count I.
Referencing this instruction, the government posited that the jury must not have "unanimously" agreed as to the attempted murder charge, therefore leaving the form blank, which resulted in a hung jury and a mistrial on that charge, and permitted a retrial for attempted murder.
Brazzel countered that the record provided no indication or evidence that the jury hung or that a mistrial had been declared with respect to the attempted murder charge. He acknowledged that the instruction stated that if the jury could not agree they should leave the form blank and convict on the lesser alternate count, but argued that a mere inability to agree with the option of compromising on a lesser alternate offense, without more, does not rise to the level of a hung jury permitting retrial. After the second trial judge rejected Brazzel's motion to bar retrial on the attempted murder charge, Brazzel stood trial a second time for attempted murder. Once again, the jury did not convict Brazzel of that charge, leaving the relevant verdict form blank. The jury was similarly instructed to proceed to the assault charge if they could not agree on the attempted murder charge. In a reprise of the first trial, the jury convicted Brazzel of first degree assault and the other assault counts. Brazzel was sentenced to 240 months in prison.
Brazzel exhausted his double jeopardy claim in state court in a pro se supplemental brief to the Washington Court of Appeals. In an unpublished opinion, the court concluded that any double jeopardy violation was "moot" since Brazzel was "essentially acquitted" of first degree murder following the second trial:
Relying on the double jeopardy clause, Brazzel claims pro se that he should not have been tried for attempted first degree murder in the second trial, given that the jury in the first trial acquitted him of that crime. If his claim is valid, we should dismiss the charge of first degree murder. Yet that has already been done, because he has essentially been acquitted of that charge. Assuming that his contention was valid earlier, it is moot now.
Washington v. Brazzel, No. 27877-4-II, 118 Wash.App. 1054, 2003 WL 22236041 (Wash. Ct.App. Sept. 30, 2003) (Emphasis added).
In essence, the Washington Court of Appeals reasoned that the double jeopardy violation was harmless error because the jury's silence on the attempted murder charge in the second case amounted to an implied acquittal. The jury's silence, which the court of appeals treated as an implied acquittal in the second trial, was identical to the jury's silence following the first trial.
After the Washington Court of Appeals denied relief, Brazzel moved for discretionary review by the Washington Supreme Court, again claiming a double jeopardy violation. His motion was denied without comment. The United States Supreme Court denied his petition for writ of certiorari. Brazzel v. Washington, 543 U.S. 1004, 125 S.Ct. 608, 160 L.Ed.2d 465 (2004) (mem.).
Brazzel filed a timely federal habeas petition in the United States District Court for the Western District of Washington. The district court, upon the recommendation of the magistrate judge, dismissed Brazzel's double jeopardy claim. The magistrate judge reasoned that assault is not a lesser included offense of attempted murder, and that the jury's failure to convict Brazzel of the alternative murder charge did not amount to an implied acquittal.
We review de novo the district court's decision to dismiss Brazzel's federal habeas petition. Lockhart v. Terhune, 250 F.3d 1223, 1228 (9th Cir.2001). Under the Anti-Terrorism and Effective...
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