State v. Allen

• Decision Date: 27 July 2021
• Docket Number: 54007-0-II
• Parties: STATE OF WASHINGTON, Respondent, v. DARCUS DEWAYNE ALLEN, Appellant.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent, v. DARCUS DEWAYNE ALLEN, Appellant.

No. 54007-0-II

Court of Appeals of Washington, Division 2

July 27, 2021

UNPUBLISHED OPINION

WORSWICK, J.

This is the third appeal involving Dorcus Allen's convictions for four counts of first degree murder.^[1] In this case, the State appeals a trial court's decision to dismiss an aggravating sentencing factor on double jeopardy grounds. In 2011, a jury found Allen guilty of four counts of first degree murder and also found that the State had proven an aggravating sentencing factor under RCW 9.94A.535(3)(v).^[2] However, the jury unanimously found that the State had not met its burden of proof regarding the similarly worded aggravating circumstance under RCW 10.95.020(1).^[3] Our Supreme Court has reviewed Allen's case twice.^[4] In the first case, it vacated Allen's convictions and remanded for trial. In the second case, it held that the prohibition against double jeopardy barred the State from realleging the RCW 10.95.020(1) aggravator because the jury unanimously determined it did not apply. After the most recent remand to superior court, Allen moved to strike the RCW 9.94A.535(3)(v) sentencing aggravator, arguing that double jeopardy and collateral estoppel barred successive prosecution of that aggravator as well. The trial court granted the motion, and we granted the State's motion for discretionary review.

The State argues that the law of the case doctrine precluded Allen from challenging the RCW 9.94A.535(3)(v) issue. The State further argues that neither double jeopardy nor collateral estoppel bars prosecution under RCW 9.94A.535(3)(v).

We hold that the law of the case doctrine does not preclude the trial court from considering double jeopardy or collateral estoppel. However, we further hold that neither double jeopardy nor collateral estoppel bars prosecution under RCW 9.94A.535(3)(v) because it is not the same as RCW 10.95.020(1) for double jeopardy purposes, and because the ultimate issues of fact to convict on RCW 9.94A.535(3)(v) were not resolved by Allen's acquittal. We reverse and remand for further proceedings consistent with this opinion.

FACTS

In 2011, a jury found Allen guilty of four counts of first degree murder after being tried as an accomplice to the fatal shooting of four police officers in Lakewood. The State alleged two aggravating circumstances that would have elevated the crimes from first degree murder to aggravated first degree murder. Allen was not convicted of aggravated first degree murder because the jury unanimously answered "no" to the questions regarding whether the State had met its burden of proof on that aggravating circumstance; the jury found that the State had not proven under RCW 10.95.020(1) that Allen was a major participant who caused the deaths of law enforcement officers who were performing their official duties at the time of the murder, and that Allen knew or reasonably should have known such at the time.^[5] However, the jury did find that the State had sufficiently proven facts to support an aggravating sentencing factor under RCW 9.94A.535(3)(v).^[6] Specifically, the jury found that Allen had committed the murders against law enforcement officers who were performing their official duties at the time of the crimes, and that Allen knew the victims were law enforcement officers.

The jury instructions defined "knowledge" as follows:

A person knows or acts knowingly or with knowledge with respect to a fact or circumstance when he or she is aware of that fact or circumstance.

If a person has information that would lead a reasonable person in the same situation to believe that a fact exists the jury is permitted but not required to find that he or she acted with knowledge of that fact.

When acting knowingly is required to establish an element of a crime, the element is also established if a person acts intentionally.

Clerk's Papers (CP) 19.

A separate jury instruction, Instruction 19, explained that if the jury found Allen guilty of first degree murder, it must determine whether aggravating circumstances had been proved. That instruction stated in part, "For the aggravating circumstances to apply, the defendant must have been a major participant in the acts causing the death of the victim and that the aggravating factors must specifically apply to the defendant's actions. The State has the burden of proving this beyond a reasonable doubt. If you have a reasonable doubt whether the defendant was a major participant, you should answer the special verdict 'no.'" CP 30. Instruction 19 contains the language from RCW 10.95.020(1). The jury was not separately instructed regarding the RCW 9.94A.535(3)(v) aggravating circumstance. None of the special verdict forms included the "major participant" language.

After the jury found Allen guilty of four counts of first degree murder, he appealed his convictions. Our Supreme Court reversed, holding that the State had committed prosecutorial misconduct. State v. Allen, 182 Wn.2d 364, 387, 341 P.3d 268 (2015) (Allen I).

In Allen I, our Supreme Court also addressed "whether an accomplice is subject to a sentence outside the statutory range based on the aggravating circumstance found in RCW 9.94A535(3)(v)." Allen, 182 Wn.2d at 369. Allen had argued that RCW 9.9A535(3)(v) did not apply to him because it did not expressly state that it applied to accomplices. Allen, 182 Wn.2d at 382. Our Supreme Court rejected that argument and clarified that, on remand "Allen is subject to an exceptional sentence so long as the jury makes the requisite findings to satisfy the elements of RCW 9.94A.535(3)(v) and such findings are based on Allen's own misconduct." Allen, 182 Wn.2d at 382-83. The court neither addressed issues of double jeopardy nor discussed the "major participant" requirement.

On remand, the State refiled the same charges against Allen in a second amended information, and Allen moved to dismiss the RCW 10.95.020 aggravating circumstance under double jeopardy. The trial court granted the motion, and the State appealed. Our Supreme Court affirmed on double jeopardy grounds holding that Allen had been unanimously acquitted of the RCW 10.95.020 factors. State v. Allen, 192 Wn.2d 526 544, 431 P.3d 117 (2018) (Allen II).

Applying Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) and the plurality decision from Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003), our Supreme Court reasoned that the RCW 10.95.020 factors are elements of the offense of aggravated first degree murder and, thus, are subject to double jeopardy under the federal and state constitutions. Allen, 192 Wn.2d at 543-44. Again, the court did not discuss the "major participant" language. The court specifically stated that the RCW 9.94A.535(3)(v) aggravating factors were not before the court on review. Allen, 192 Wn.2d at 530 n.2.

When the case returned to the trial court, Allen moved to strike the RCW 9.94A.535(3)(v) aggravating factors from the second amended information under double jeopardy and collateral estoppel. The trial court granted the motion to strike, stating that "Allen cannot be retried as to the elements and circumstances because to do so would violate Allen II[, ] Article I, Section 9 of the Washington State Constitution, the 5^th Amendment of the United States Constitution, Double Jeopardy and collateral estoppel clauses of the United States and Washington State Constitutions." CP 169. The State then moved this court for discretionary review, which we granted.

The State appeals the trial court's order granting the motion to strike the RCW 9.94A.535(3)(v) aggravating factors from the second amended information.

ANALYSIS

The State argues that the trial court erred by striking the RCW 9.94A.535 factors because the law of the case doctrine prevented the court from reconsidering this issue, and neither double jeopardy nor collateral estoppel bars prosecution under RCW 9.94A.535(3)(v). We hold that the law of the case doctrine did not preclude the trial court from considering Allen's arguments, but neither double jeopardy nor collateral estoppel barred the State from charging Allen with the RCW 9.94A.535(3)(v) aggravator.

I. Law of the Case

The State argues that Allen's claims of double jeopardy and collateral estoppel with respect to RCW 9.94A.535(3)(v) are barred by under the law of the case doctrine. Specifically the State argues that our Supreme Court's holding in Allen I, expressly stating that Allen may be subject to prosecution under RCW 9.94A.535(3)(v) on remand, is binding upon the trial court as the law of the case. We disagree.

The law of the case doctrine provides that a legal decision of an appellate court establishes the law of the case and must be followed in subsequent stages of the litigation. Pac Coast Shredding, LLC v. Port of Vancouver, USA, 14 Wn.App. 2d 484, 507, 471 P.3d 934 (2020). This rule "forbids, among other things, a lower court from relitigating issues that were decided by a higher court, whether explicitly or by reasonable implication, at an earlier stage of the same case." Pac. Coast Shredding, LLC, 14 Wn.App. 2d at 507 (quoting Lodis v. Cordis Holdings, Inc., 192 Wn.App. 30, 56, 366 P.3d 1246 (2015)).

The law of the case doctrine derives from the common law, but is also codified in RAP 2.5(c).^[7] Roberson v. Perez, 156 Wn.2d 33, 41, 123 P.3d 844 (2005). RAP 2.5 gives some discretion to the appellate courts for revisiting the law of the case, although it makes mandatory and binding the law of the case upon trial courts. Lodis, 192 Wn.App. at 57.

The Task Force Comment to RAP 2.5 accompanying the rule as first proposed to our Supreme Court in 1974 illustrates that trial courts should...