In re Moi

• Decision Date: 29 October 2015
• Docket Number: No. 89706–9.,89706–9.
• Citation: 184 Wash.2d 575,360 P.3d 811
• Parties: In the Matter of the Personal Restraint of Mathew Wilson MOI, Petitioner.
• Court: Washington Supreme Court

184 Wash.2d 575

360 P.3d 811

In the Matter of the Personal Restraint of Mathew Wilson MOI, Petitioner.

No. 89706–9.

Supreme Court of Washington, En Banc.

Argued Sept. 8, 2015.

Decided Oct. 29, 2015.

David L. Donnan, Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Petitioner.

Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, Ann Marie Summers, King County Prosecutor's Office, Seattle, WA, for Respondent.

Opinion

GONZÁLEZ, J.

¶ 1 It is a bedrock principle of constitutional law that “[n]o person shall ... be twice put in jeopardy for the same offense.” Wash. Const.art. I, § 9. In 2006, Mathew Moi was tried for the murder of Keith McGowan and for unlawful possession of the gun that killed McGowan. No physical evidence tied Moi to the gun, and perhaps because of that the jury was unable to reach a verdict on the murder charge. Based on the same evidence, Moi was acquitted of unlawful possession of the gun. On its second try, the State secured a murder conviction, still arguing that McGowan was killed with the gun Moi was acquitted of possessing. The State concedes that the same issue of ultimate fact was decided in both trials but argues it would be unjust to apply double jeopardy against it because it was surprised by Moi's testimony in the first trial that someone else shot McGowan and because Moi had moved to sever the two charges. Given the State's concession, we grant the personal restraint petition.

Facts

¶ 2 On October 19, 2004, someone shot and killed McGowan when he went to his front door. Suspicion soon fell on Moi. Based on witness testimony that placed Moi at the scene and an ex-girlfriend's statement that Moi told her he had killed someone that night, Moi was charged with murder. Moi admitted he was there when McGowan was shot but denied being the shooter.

¶ 3 The State's crime lab later determined that McGowan was killed by a gun recovered from a nearby storm drain. No fingerprints or other direct physical evidence linked the gun to Moi, but the State offered testimony that suggested Moi had entrusted the gun to friends who had tossed it into the storm drain.

¶ 4 Moi had prior juvenile convictions for second degree robbery and thus was not permitted to possess firearms. SeeRCW 9.41.040. Shortly before the first trial, the State added a charge of unlawful possession of a firearm based on the same constellation of facts alleged in the murder charge. Moi moved to sever the two charges to shield the jury in the murder case from the potential prejudicial effect of knowing he had been convicted of second degree robbery as a juvenile. The State opposed severance, arguing that severing the charges “would require the State to present the exact same case a second time.” Verbatim Report of Proceedings (VRP) (Oct. 24, 2006) at 236. The State suggested, among other things, that Moi waive his right to a jury trial and have the firearm charge tried to the bench at the same time the murder charge was tried to a jury. Ultimately, the parties agreed to do that.

¶ 5 After 10 days of testimony and 13 hours of deliberation, the first jury was unable to reach a verdict and the judge declared a mistrial. State v. Moi,noted at 165 Wash.App. 1006, 2011 WL 6825264, at *1. The trial judge delayed ruling on the unlawful possession charge to allow briefing on the possible double jeopardy implications and to allow the parties to have plea discussions. The parties were unable to reach a plea agreement but agreed the judge should reach judgment on the unlawful possession charge based on the evidence already presented. After asking a few questions, the judge concluded the State had not carried its burden of proof and acquitted Moi of the charge.

¶ 6 Moi was tried again for murder in 2007. The case was assigned to a different judge, who allowed the State to present motive evidence the first judge had excluded. The second jury returned a guilty verdict. Moi's direct appeal, which did not raise a double jeopardy challenge, was unsuccessful. Id.Moi, pro se, filed this timely personal restraint petition, arguing that double jeopardy did not allow him to be tried for murder with a gun he had been acquitted of possessing. We granted review and assigned counsel.

In re Pers. Restraint of Moi,182 Wash.2d 1015, 344 P.3d 688 (2015).

Analysis

¶ 7 “No person shall ... be twice put in jeopardy for the same offense.” Wash. Const.art. I, § 9; U.S. Const.amend. V. Our two constitutions provide the same protection against double jeopardy. In re Pers. Restraint of Orange,152 Wash.2d 795, 815, 100 P.3d 291 (2004)(citing State v. Gocken,127 Wash.2d 95, 100, 896 P.2d 1267 (1995)). We generally review double jeopardy challenges de novo, but as the party asserting collateral estoppel, Moi bears the burden of proof. State v. Freeman,153 Wash.2d 765, 770, 108 P.3d 753 (2005)(citing State v. Johnston,100 Wash.App. 126, 137, 996 P.2d 629 (2000)); State v. Williams,132 Wash.2d 248, 254, 937 P.2d 1052 (1997)(citing McDaniels v. Carlson,108 Wash.2d 299, 303, 738 P.2d 254 (1987)). As this is a personal restraint petition alleging constitutional error, Moi bears the burden of showing actual and substantial prejudice, which he satisfies if he shows double jeopardy is violated. In re Pers. Restraint of Orange,152 Wash.2d at 804, 822, 100 P.3d 291(citing In re Pers. Restraint of Lile,100 Wash.2d 224, 225, 668 P.2d 581 (1983)).

¶ 8 Among many other things, “the Double Jeopardy Clause incorporates the doctrine of collateral estoppel.” Dowling v. United States,493 U.S. 342, 347, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990)(citing Ashe v. Swenson,397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970)). Under the collateral estoppel doctrine, “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit,” including a criminal prosecution.Ashe,397 U.S. at 443, 90 S.Ct. 1189. The Ashecase is illustrative. Several masked men had robbed a six-player poker game. Id.at 437, 90 S.Ct. 1189. Ashe was initially charged with robbing just one of the players. Id.at 438, 90 S.Ct. 1189. After the jury acquitted Ashe of robbing that player, the State charged him with robbing another, “frankly conced[ing] that following the petitioner's acquittal, it treated the first trial as no more than a dry run for the second prosecution.” Id.at 439, 447, 90 S.Ct. 1189. The Supreme Court reviewed the evidence presented, concluded that “[t]he single rationally conceivable issue in dispute before the jury was whether the petitioner had been one of the robbers,” and held that double jeopardy barred the subsequent prosecution. Id.at 445, 90 S.Ct. 1189. The issue of ultimate fact in that case was whether Ashe had robbed the poker game, not which player he had robbed. Id.at 446, 90 S.Ct. 1189(“[T]he name of the victim, in the circumstances of this case, had no bearing whatever upon the issue of whether the petitioner was one of the robbers.”). Once acquitted, the State could not “constitutionally hale him before a new jury to litigate that issue again.” Id.

¶ 9 Following Ashe,Moi argues that the State was collaterally estopped from prosecuting him for murder in 2007 when the State's theory of the case was that he shot the victim with a gun he was acquitted of possessing in 2006. Pet'r's Suppl. Br. at 11 (citing Ashe,397 U.S. at 446, 90 S.Ct. 1189). Collateral estoppel in Washington has four elements that the party asserting it (here Moi) must establish:

“(1) the issue decided in the prior adjudication must be identical with the one presented in the second; (2) the prior adjudication must have ended in a final judgment on the merits; (3) the party against whom the plea of collateral estoppel is asserted must have been a party or in privity with a party to the prior litigation; and (4) application of the doctrine must not work an injustice.”

Williams,132 Wash.2d at 254, 937 P.2d 1052(quoting State v. Cleveland,58 Wash.App. 634, 639, 794 P.2d 546 (1990)).¹Here, the State concedes that Moi has met the first three elements. Wash. Supreme Court oral argument, In re Pers. Restraint of Moi,No. 89706–9 (Sept. 8, 2015), at 15 min., 52 sec. through 17 min., 7 sec.²Thus, the only question is whether application of the doctrine will not work an injustice. Williams,132 Wash.2d at 254, 937 P.2d 1052(quoting Cleveland,58 Wash.App. at 639, 794 P.2d 546).

¶ 10 First, the State argues that applying collateral estoppel would work an injustice because Moi created the situation by moving to sever the murder and unlawful possession charges in his first trial. Suppl. Br. of Resp't at 17–18 (citing Jeffers v. United States,432 U.S. 137, 154, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977); Ohio v. Johnson,467 U.S. 493, 502, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984)); Wash. Supreme Court oral argument, supra,at approximately 20 min.; VRP (Oct. 24, 2006) at 239, 241. We find this unpersuasive.

¶ 11 Moi did nothing wrong by seeking severance. The probative value of Moi's juvenile criminal history to the murder charge was slight, and its potential prejudicial effect on the jury was great. See generallyState v. Gunderson,181 Wash.2d 916, 923, 337 P.3d 1090 (2014); State v. Smith,106 Wash.2d 772, 779–80, 725 P.2d 951 (1986). Nor did he do anything wrong by acceding to the State's suggestion that he waive his right to a jury on the unlawful possession charge and have it tried to the bench. Neither of the cases the State cites suggest otherwise. In Jeffers,the court held that it would not apply the “same evidence” rule from Blockburgerto cases where the defendant successfully opposes the government's attempt to try charges together. 432 U.S. at 139, 144, 153–54, 97 S.Ct. 2207(citing Blockburger v. United States,284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)). Moi's motion to sever was unsuccessful, and his counsel, as a second best option, acceded to the State's proposal that the unlawful possession charge be tried to the bench. VRP Oct....