Lemke v. Rayes

• Decision Date: 15 August 2006
• Docket Number: No. 1 CA-SA 06-0130.,1 CA-SA 06-0130.
• Citation: 141 P.3d 407,213 Ariz. 232
• Parties: Robert David LEMKE, Petitioner, v. The Honorable Douglas L. RAYES, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, State of Arizona, Real Party in Interest.
• Court: Arizona Court of Appeals

141 P.3d 407

213 Ariz. 232

Robert David LEMKE, Petitioner, v.The Honorable Douglas L. RAYES, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, RespondentJudge State of Arizona, Real Party in Interest.

No. 1 CA-SA 06-0130.

Court of Appeals of Arizona, Division 1, Department B.

August 15, 2006.

COPYRIGHT MATERIAL OMITTED

Susan Sherwin, Office of the Legal Advocate, By Thomas J. Dennis, Deputy Legal Advocate, Bruce Peterson, Deputy Legal Advocate, Phoenix, Attorneys for Petitioner.

Andrew P. Thomas, Maricopa County Attorney ByLisa Marie Martin, Deputy County Attorney, Phoenix, Attorneys for Real Party in Interest.

OPINION

HALL, Judge.

¶ 1Robert David Lemke seeks special action review of the superior court's order denying his motion to dismiss his felony-murder charge before retrial as barred by double jeopardy and collateral estoppel principles.In denying Lemke's motion, the superior court determined that: (1) there are no lesser-included offenses of felony murder and therefore no other offenses constitute the "same offense" as felony murder for double jeopardy purposes; and (2) Lemke failed to meet his burden of demonstrating that the jury decided an ultimate issue of fact in his favor as required under collateral estoppel to bar retrial.

¶ 2 In the exercise of our discretion, we previously accepted jurisdiction because Lemke has no adequate remedy by appeal.SeeState v. Moody,208 Ariz. 424, 438, ¶ 22, 94 P.3d 1119, 1133(2004)("[A] petition for special action is the appropriate vehicle for a defendant to obtain judicial appellate review of an interlocutory double jeopardy claim.Because the Double Jeopardy Clause guarantees the right to be free from subsequent prosecution, the clause is violated by the mere commencement of retrial.")(citations omitted);see alsoAriz. R.P. Spec. Act.1(a).Because Lemke's retrial on the felony-murder charge is not barred by the doctrines of double jeopardy or collateral estoppel, we denied Lemke's request for relief with a written decision to follow.We now issue this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 On August 9, 2002, Charles Richard Chance was shot once in the chest and robbed while at a hotel.He died at the scene from the gunshot wound.

¶ 4 On November 1, 2002, Lemke was indicted for his involvement in the robbery and murder as follows: (1) Count I — first degree (felony) murder, a class one dangerous felony, in violation of Arizona Revised Statutes(A.R.S.)sections 13-1105(A)(2) and -604(P)(Supp.2005); (2) Count II — armed robbery, a class two dangerous felony, in violation of A.R.S. §§ 13-1904(2001) and -604(P); and (3) Count III — conspiracy to commit armed robbery, a class two dangerous felony, in violation of A.R.S. §§ 13-1003(2001), -1904, and -604(P).On November 5, 2002, Lemke's codefendant, Brandi Lynn Hungerford, entered a plea agreement in which she agreed to plead guilty to second degree murder, armed robbery, and conspiracy to commit armed robbery and to cooperate with the State in its prosecution of Lemke.

¶ 5 Lemke's trial commenced on August 15, 2005.During trial, Hungerford testified that she and Lemke conspired only to rob Chance at gunpoint and then to bind and leave him at the motel, not to shoot him.Lemke testified that he had no involvement in the robbery or murder, but admitted helping Hungerford sell a piece of Chance's jewelry.

¶ 6 On September 7, 2005, during discussion of final jury instructions, Lemke requested that instructions for the lesser-included offenses of theft (as to Count II) and conspiracy to commit theft (as to Count III) be submitted to the jury.The State did not object and the trial court incorporated the LeBlanc¹ instructions for the lesser-included offenses in the final jury instructions:

The crime of Conspiracy to Commit Armed Robbery includes the lesser offense of Conspiracy to Commit Theft.You may consider the lesser offense of Conspiracy to Commit Theft if either:

1. you find the defendant not guilty of Conspiracy to Commit Armed Robbery; or

2. after full and careful consideration of the facts, you cannot agree on whether to find the defendant guilty or not guilty of Conspiracy to Commit Armed Robbery.

. . . .

The crime of Armed Robbery includes the lesser offense of Theft.You may consider the lesser offense of Theft if either:

1. you find the defendant not guilty of Armed Robbery; or

2. after full and careful consideration of the facts, you cannot agree on whether to find the defendant guilty or not guilty of Armed Robbery.

¶ 7 On September 16, 2005, after seven days of deliberation, the jury returned verdicts of guilt on theft, the lesser-included offense of Count II, and conspiracy to commit theft, the lesser-included offense of Count III.The jury was unable to reach a verdict on Count I, the felony-murder charge.The trial court sentenced Lemke to terms of imprisonment totaling twenty-seven years for the theft and conspiracy convictions.

¶ 8 Four months later, Lemke filed a motion to dismiss the felony-murder count claiming retrial is barred by double jeopardy and collateral estoppel principles.After hearing oral argument, the superior court issued a minute entry denying the motion.In addressing the double jeopardy claim, the court stated in relevant part:

In the present case, [Lemke] was charged with First Degree Murder under the theory of felony-murder, pursuant to A.R.S. § 13-1105(2).Only lesser included offenses of felony-murder would be deemed the "same offense" for purposes of the Double Jeopardy Clause.Brown v. Ohio,432 U.S. 161, 168[97 S.Ct. 2221, 53 L.Ed.2d 187](1977).There are no lesser-included offenses of felony-murder.State v. LaGrand,153 Ariz. 21, 30, 734 P.2d 563, 572, cert denied,484 U.S. 872[108 S.Ct. 207, 98 L.Ed.2d 158](1987).This is because the "mens rea necessary to satisfy the premeditation element of first degree murder is supplied by the specific intent required for the felony."Id.(citingState v. Arias,131 Ariz. 441, 443-44, 641 P.2d 1285, 1287-88(1982)).Because the jury did not return a verdict of guilty on any lesser offense of felony-murder, there can be no "implied acquittal" from the jury's silence as to that charge, and there is no double jeopardy bar to retrying[Lemke] for felony murder.

The court then resolved Lemke's claim of collateral estoppel by noting that he failed to satisfy his burden of demonstrating that the issue was actually decided in the first trial because, under the LeBlanc instruction, "the jury's silence as to the armed robbery charge can serve neither as evidence of an acquittal nor as evidence of a hung jury."

DISCUSSION

¶ 9 Lemke contends that the superior court erred by denying his motion to dismiss the felony-murder charge because retrial is barred by double jeopardy and collateral estoppel.Specifically, he argues that the jury's guilty verdicts on the lesser-included offenses of theft and conspiracy to commit theft constitute "implicit acquittals" of the greater offenses of armed robbery and conspiracy to commit armed robbery.Because the predicate offense for the felony-murder charge is armed robbery, Lemke maintains that the State would necessarily have to prove armed robbery — a count for which Lemke has already been impliedly acquitted — to prove the offense of felony murder, thereby violating the doctrines of double jeopardy and collateral estoppel.

I.Double Jeopardy

¶ 10 The Double Jeopardy Clauses in the United States and Arizona Constitutions² prohibit: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.United States v. Dixon,509 U.S. 688, 744, 113 S.Ct. 2849, 125 L.Ed.2d 556(1993);State v. Cook,185 Ariz. 358, 360, 916 P.2d 1074, 1076(App.1995).Lemke argues that his pending retrial on the unresolved felony-murder charge would violate the prohibition against being prosecuted for the same offense after acquittal.We review de novo whether double jeopardy applies.Schiro v. Farley,510 U.S. 222, 233, 114 S.Ct 783, 127 L.Ed.2d 47(1994);State v. Powers,200 Ariz. 123, 125, ¶ 5, 23 P.3d 668, 670(App.2001).

¶ 11 Lemke uses syllogistic reasoning to frame his argument that retrial on the felony-murder count is barred by double jeopardy.First, citing Green v. United States,355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199(1957), he argues that the jury impliedly acquitted him of armed robbery, the predicate offense for felony murder, when it convicted him of theft but left blank the form of verdict for the greater offense of armed robbery.Second, Lemke asserts that armed robbery is the "same offense" for double jeopardy purposes as felony murder predicated on armed robbery.Third, arguing that his original jeopardy on the armed robbery charge terminated when the jury "acquitted" him of that offense, Lemke concludes that a second trial on the felony-murder charge would violate the Double Jeopardy Clause by placing him "twice in jeopardy" for the "same offense."We analyze each premise of Lemke's argument separately.

¶ 12 The first basis of Lemke's argument is that he was impliedly acquitted of armed robbery.In Green,the defendant was indicted on one count of arson and one count of first degree murder by causing the death of a person in perpetrating the arson, an offense that is commonly referred to as felony murder.355 U.S. at 185, 78 S.Ct. 221.At the conclusion of the evidence, the trial judge instructed the jury that it could find Green guilty of arson under the first count and of either first degree murder or the lesser-included offense of second degree murder.Id.The jury returned a verdict finding Green guilty of arson and second degree murder, but the jury was silent on the charge of first degree murder.Id. at 186, 78 S.Ct. 221.When Green succeeded in having the second degree murder conviction...