St. Pierre, Matter of

• Decision Date: 30 January 1992
• Docket Number: No. 57300-0,57300-0
• Citation: 823 P.2d 492,118 Wn.2d 321
• Parties: In the Matter of the Personal Restraint Petition of Christopher L. ST. PIERRE, Petitioner.
• Court: Washington Supreme Court

Page 321

118 Wn.2d 321

823 P.2d 492

In the Matter of the Personal Restraint Petition of Christopher L. ST. PIERRE, Petitioner.

No. 57300-0.

Supreme Court of Washington En Banc.

Jan. 30, 1992.

Reconsideration Denied March 17, 1992.

Washington Appellate Defender, Kenneth S. Kagan, Suzanne Lee Elliott, Seattle, for petitioner.

Norm Maleng, King County Prosecutor, Donna L. Wise, Sr. Appellate Atty., Seattle, for respondent.

DOLLIVER, Justice.

Petitioner Christopher St. Pierre challenges an unpublished Court of Appeals decision dismissing his personal restraint petition. Petitioner seeks the retroactive application of State v. Irizarry, 111 Wash.2d 591, 763 P.2d 432 (1988).

In separate trials, petitioner was found guilty of first degree felony murder, first degree kidnapping, and second degree assault in the death of Damon Wells and aggravated first degree murder in the death of John Achord. State v. St. Pierre, 111 Wash.2d 105, 110, 759 P.2d 383 (1988). On direct review, we reversed petitioner's conviction for aggravated first degree murder, but affirmed the first degree felony murder conviction. We determined the admission of co-conspirators' statements relative to the Achord murder violated petitioner's Sixth Amendment right to confront witnesses, but held that petitioner's Sixth Amendment right was not violated relative to the Wells murder because petitioner's own statements established his guilt. St. Pierre, 111 Wash.2d at 120, 759 P.2d 383. Our decision in St. Pierre was published on July 14, 1988, and amended on July 20, 1988. Petitioner's motion for reconsideration was denied on November 4, 1988.

At the trial of the Wells murder, the court instructed the jury that if it failed to find petitioner guilty of the charged crime of aggravated first degree murder, it could find him guilty of the included offenses of premeditated murder in the first degree, felony murder in the first and second degree, and murder in the second degree. Petitioner specifically objected to this instruction, arguing that felony murder was not a proper included offense of aggravated first degree murder. However, on appeal, petitioner failed to raise the included offense instruction as an error. St. Pierre, 111 Wash.2d at 120 n. 5, 759 P.2d 383.

After St. Pierre was published, but before petitioner's motion for reconsideration was denied, we decided State v. Irizarry, supra. In Irizarry, we concluded felony murder is not an included offense within the offense of aggravated first degree murder. Therefore, we concluded the trial court's instruction treating felony murder as an included offense was a prejudicial error requiring a new trial. Irizarry, 111 Wash.2d at 592, 763 P.2d 432. The Irizarry decision was announced on October 27, 1988, 8 days before petitioner's motion for reconsideration was denied.

Petitioner then brought this personal restraint petition seeking retroactive application of Irizarry to his case. By order dated May 31, 1990, the Court of Appeals dismissed the petition. It concluded petitioner's conviction was final as to this issue when Irizarry was decided, and petitioner failed to satisfy the requirements for a collateral attack on a conviction. We use a somewhat different analysis but affirm.

Retroactivity analysis has been marked by erratic development since the United States Supreme Court announced the doctrine in 1965. Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 1737, 14 L.Ed.2d 601 (1965); Comment, Griffith v. Kentucky: Partial Adoption of Justice Harlan's Retroactivity Standard, 10 Crim.Just.J. 153 (1987). Nevertheless, we have attempted from the outset to stay in step with the federal retroactivity analysis. In re Sauve, 103 Wash.2d 322, 326-28, 692 P.2d 818 (1985).

Prior to Linkletter, all new constitutional rules of criminal procedure were applied retroactively. Note, 10 Crim.Just.J. at 155. In Linkletter, the Court first concluded the Constitution neither compels nor prohibits retroactive application of new constitutional rules of criminal procedure. Linkletter, 381 U.S. at 629, 85 S.Ct. at 1737. The Court then developed a 3-prong analysis which focused on (1) the purpose to be served by the new rule, (2) the extent of reliance by law enforcement authorities on the old standard, and (3) the effect of retroactive application on the administration of justice. Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967). From this point, the Supreme Court periodically modified the analysis by injecting new considerations into the formula. First, the Court announced that new rules amounting to a "clear break" with past precedents would not be applied retroactively. United States v. Johnson, 457 U.S. 537, 549, 102 S.Ct. 2579, 2586, 73 L.Ed.2d 202 (1982). The Court also created a distinction between direct and collateral review. New rules not amounting to a clear break with precedent would automatically be applied to all convictions not yet final at the time the rule was announced. Johnson, 457 U.S. at 562, 102 S.Ct. at 2593. However, the retroactivity of new rules raised on collateral review would still be evaluated under the three Stovall criteria. In re Taylor, 105 Wash.2d 683, 691, 717 P.2d 755 (1986). Even where the Stovall criteria were still applicable, if the major purpose of the new rule was to remedy a defect in the truth-finding function, retroactive application was required without regard to the other Stovall factors. Ivan V. v. New York, 407 U.S. 203, 204, 92 S.Ct. 1951, 1952, 32 L.Ed.2d 659 (1972).

By the Court's own admission, the Linkletter retroactivity standard led to a series of inconsistent results. Teague v. Lane, 489 U.S. 288, 302-04, 109 S.Ct. 1060, 1070-71, 103 L.Ed.2d 334 (1989) (O'Connor, J., opinion). Justice Harlan suggested an alternative approach. See Desist v. United States, 394 U.S. 244, 258, 89 S.Ct. 1030, 1038, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting). Justice Harlan argued all new rules, regardless of whether they break with past precedents must be applied to all cases subject to direct review at the time the rule is announced. Desist, 394 U.S. at 258, 89 S.Ct. at 1038 (Harlan, J., dissenting). However, Justice Harlan viewed collateral attacks differently. He argued new rules of any sort should not be applied retroactively on collateral review, subject to two narrow exceptions: (1) rules which place certain kinds of primary, private individual conduct beyond the power of the state to proscribe, and (2) rules which require the observance of procedures implicit in the concept of ordered liberty. Mackey v. United States, 401 U.S. 667, 692-93, 91 S.Ct. 1160, 1179-80, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring).

The Supreme Court has now largely adopted Justice Harlan's analysis. In Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987), the Court expressly adopted Justice Harlan's view as to direct review. More recently, a majority of the court expressly endorsed Justice Harlan's view as to the limitations on collateral review. Teague, 489 U.S. at 310, 109 S.Ct. at 1074 (O'Connor, J., opinion), at 317, 109 S.Ct. at 1078 (White, J., concurring), at 319-20, 109 S.Ct. at 1079-80 (Stevens, J., concurring). The current retroactivity analysis may be neatly summarized in a 2-part standard:

(1) A new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a clear break from the past. Griffith, 479 U.S. at 328, 107 S.Ct. at 716.

(2) A new rule will not be given retroactive application to cases on collateral review except where either: (a) the new rule places certain kinds of primary, private individual conduct beyond the power of the state to proscribe, or (b) the rule requires the observance of procedures implicit in the concept of ordered liberty. Teague, 489 U.S. at 311, 109 S.Ct. at 1075 (O'Connor, J., opinion).

The Court's past pronouncements as to rules which are a clear break with the past and rules implicating the truth finding function are no longer applicable.

The critical issue in applying the current retroactivity analysis is whether the case was final when the new rule was announced. Petitioner argues his conviction was not yet final because this court did not deny his motion for reconsideration until 8 days after the rule in Irizarry was announced. The State argues petitioner's conviction was final as to the included offense issue because petitioner failed to pursue the issue on direct appeal.

The Supreme Court defines "final" for the purposes of retroactivity analysis as follows:

By "final," we mean a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied.

Griffith, 479 U.S. at 321 n. 6, 107 S.Ct. at 712 n. 6; United States v. Johnson, 457 U.S. 537, 542 n. 8, 102 S.Ct. 2579, 2583 n. 8, 73 L.Ed.2d 202 (1982); Linkletter, 381 U.S. at 622 n. 5, 85 S.Ct. at 1734 n. 5. In Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 2944, 106 L.Ed.2d 256 (1989), the Supreme Court determined the defendant's conviction was not final for retroactivity analysis purposes until his petition for certiorari on direct appeal was denied. Therefore, the Court concluded that in his federal habeas corpus petition the defendant was entitled to the benefit of two decisions which were announced prior to the final rejection of his petition for certiorari. Penry, 109 S.Ct. at 2944-45.

We interpret the Supreme Court's language to contemplate the finality of the case as a whole, not the finality of a single issue. We reject any notion an issue may become final for the purposes of retroactivity analysis before the finality of the case as a whole. A contrary approach would encourage parties to maintain seemingly frivolous claims...