State v. Allen
| Decision Date | 13 December 2018 |
| Docket Number | No. 95454-2,95454-2 |
| Citation | 431 P.3d 117 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Petitioner, v. Darcus Dewayne ALLEN Respondent. |
Jason Ruyf, Pierce County Prosecutor's Office, 930 Tacoma Avenue S, Room 946, Tacoma, WA, 98402-2102, for Petitioner.
Gregory Charles Link, Washington Appellate Project, 1511 3rd Avenue, Suite 610, Seattle, WA, 98101-3647, for Respondent.
¶ 1 This case asks whether the aggravating circumstances listed in RCW 10.95.020 are "elements" of the offense of aggravated first degree murder for purposes of the Fifth Amendment's double jeopardy clause. U.S. CONST. amend. V. Respondent Dorcus Dewayne Allen was convicted of four counts of first degree murder but acquitted of two RCW 10.95.020 aggravating circumstances on each count. We later vacated Allen's convictions and remanded for a new trial. State v. Allen, 182 Wash.2d 364, 387, 341 P.3d 268 (2015) ( Allen I ). The question before us now is whether Allen can be tried a second time on the RCW 10.95.020 aggravating circumstances. The trial court ruled that he cannot, and the Court of Appeals agreed. We hold that retrial on the aggravating circumstances is barred by double jeopardy principles and thus affirm.1
¶ 2 In November 2009, Maurice Clemmons shot and killed four Lakewood police officers. Allen drove Clemmons to and from the crime scene. The factual details are recounted in Allen I and need not be repeated here. Id. at 369-70, 341 P.3d 268.
¶ 3 Allen was charged as an accomplice with four counts of aggravated murder in the first degree pursuant to RCW 10.95.020, which provides that "[a] person is guilty of aggravated first degree murder, a class A felony, if he or she commits first degree murder as defined by RCW 9A.32.030(1)(a)... and one or more of [14 listed] aggravating circumstances exist." The information charged Allen with two aggravating circumstances for each count:
(1) that the victim was a law enforcement officer who was performing [his or her] official duties at the time of the act resulting in death, and the victim was known or reasonably should have been known by the defendant to be such at the time of the killing; and/or (2) that there was more than one victim and the murders were part of a common scheme or plan or the result of a single act of the defendant; contrary to RCW 10.95.020(1) and 10.95.020(10).
Clerk's Papers (CP) at 1-3.2 If the jury found that either one of the aggravating circumstances existed, the minimum penalty for each first degree murder conviction would increase from a term of years to mandatory life imprisonment without the possibility of release or parole.3 Former RCW 10.95.030(1) (1993).
¶ 4 At the close of trial, the jury was instructed to separately consider each of the four counts of murder in the first degree and to return a verdict of guilty or not guilty on each count. The jury was also given special verdict forms related to each count and was instructed to fill these forms out only if it found Allen guilty of the related murder counts. The special verdict forms read as follows:
CP at 35-38. The presiding juror wrote "no" in the blank next to each answer and circled "no." Id. After reading each verdict and special verdict form into the record, the trial court polled the jury individually, asking each juror, "Is this your verdict?" and "Is it the verdict of the jury?" Id. at 148-50. Each juror answered "yes" to each question. Id. Allen was sentenced to 420 years in prison.
¶ 5 On review, this court vacated Allen's convictions due to prosecutorial misconduct and remanded for a new trial. Allen I, 182 Wash.2d at 387, 341 P.3d 268. On remand, the State filed the same charges as in the first trial, including the same RCW 10.95.020 aggravating circumstances. The trial court granted Allen's motion to dismiss the aggravating circumstances on double jeopardy grounds and denied the State's motion for reconsideration.
¶ 6 The Court of Appeals affirmed on discretionary interlocutory review, holding that the State v. Allen, 1 Wash. App. 2d 774, 787, 407 P.3d 1166 (2017). We granted the State's petition for review. State v. Allen, 190 Wash.2d 1007, 414 P.3d 575 (2018).
A. Did the jury in Allen's first trial unanimously acquit him of both RCW 10.95.020 aggravating circumstances?
B. If Allen was acquitted on the aggravating circumstances, does the prohibition on double jeopardy bar a retrial on those aggravating circumstances?
¶ 7 Both the United States and Washington Constitutions prohibit successive prosecutions for an offense on which the defendant has been acquitted. U.S. CONST. amend. V ; WASH. CONST. art. I, § 9 ; Bravo-Fernandez v. United States , ––– U.S. ––––, 137 S.Ct. 352, 357, 196 L.Ed.2d 242 (2016) ; State v. Guzman Nuñez, 174 Wash.2d 707, 717 n.4, 285 P.3d 21 (2012). Before we can determine whether Allen may be retried on the aggravating circumstances, we must determine whether he was acquitted of them at his first trial. The trial court and Court of Appeals determined that he was. We agree.
¶ 8 At the time of Allen's trial, our precedent held that if a jury did not unanimously find that the State had proved an RCW 10.95.020 aggravating circumstance, the defendant was acquitted of that aggravating circumstance. Statev. Goldberg, 149 Wash.2d 888, 894, 72 P.3d 1083 (2003). This "nonunanimity rule" was later overruled in Guzman Nuñez , which held that acquittal of aggravating circumstances requires jury unanimity. 174 Wash.2d at 718-19, 285 P.3d 21. But Guzman Nuñez was decided after Allen's trial was completed. Therefore, in accordance with then-controlling precedent, the special verdict forms used in Allen's trial required jury unanimity only in order to answer "yes" on the aggravating circumstances. The special verdict forms did not require jury unanimity in order to answer "no." We must determine if the jury was nonetheless unanimous in finding that the State failed to prove the RCW 10.95.020 aggravating circumstances.
¶ 9 Viewed in isolation, the "no" answer on the special verdict forms could be interpreted in two ways: (a) the jury unanimously answered "no" or (b) the jury answered "no" because they could not unanimously answer "yes." However, when polled by the trial court, each juror affirmed that the "no" verdicts were his or her own verdicts and the verdicts of the jury. Such individual jury polling is generally evidence of jury unanimity. State v. Lamar, 180 Wash.2d 576, 587, 327 P.3d 46 (2014).
¶ 10 The State contends that the jurors might have interpreted both questions as asking the same thing: "Do you unanimously agree that this was not a unanimous ‘yes’ "?4 We disagree. It is unlikely that an ordinary juror would be confused in this way, and there is no indication of such confusion in the record. Thus, we affirm that the jury unanimously acquitted Allen of both aggravating circumstances at his first trial.
¶ 11 Because Allen was unanimously acquitted of the RCW 10.95.020 aggravating circumstances at his first trial, we must now determine whether the constitutional prohibition on double jeopardy bars a retrial on these aggravating circumstances. Outside of the death penalty context, the double jeopardy clause applies only to offenses, not sentences. Bullington v. Missouri, 451 U.S. 430, 438, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). Therefore, the critical question is whether the RCW 10.95.020 aggravating circumstances are "elements" of the "offense" of aggravated first degree murder in a noncapital case for double jeopardy purposes.
¶ 12 We have previously held that RCW 10.95.020 aggravating circumstances "are ‘aggravation of penalty’ factors which enhance the penalty for the offense, and are not elements of a crime as such." State v. Kincaid , 103 Wash.2d 304, 307, 692 P.2d 823 (1985). As a result, we have previously stated that "double jeopardy does not apply to aggravating circumstances outside the death penalty context."
Guzman Nuñez, 174 Wash.2d at 717, 285 P.3d 21 ; see also State v. Kelley, 168 Wash.2d 72, 80-82, 226 P.3d 773 (2010). However, because "the legal underpinnings of our precedent have changed" so significantly, we are compelled to revisit the issue in light of subsequent decisions of the United States Supreme Court. W.G. Clark Constr. Co. v. Pac. Nw. Reg'l Council of Carpenters, 180 Wash.2d 54, 66, 322 P.3d 1207 (2014).
¶ 13 The United States Supreme Court has clarified that for Sixth Amendment purposes, "any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury." Alleyne v. United States , 570 U.S. 99, 103, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (overruling...
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