State v. Benn

• Decision Date: 23 August 2007
• Docket Number: No. 78094-3.,78094-3.
• Citation: 165 P.3d 1232,161 Wn.2d 256
• Court: Washington Supreme Court
• Parties: STATE of Washington, Appellant, v. Gary Michael BENN, Respondent.

165 P.3d 1232

161 Wn.2d 256

STATE of Washington, Appellant, v. Gary Michael BENN, Respondent.

No. 78094-3.

Supreme Court of Washington, En Banc.

Argued January 23, 2007.

Decided August 23, 2007.

Kathleen Proctor, Pierce County Prosecuting Atty Office, Tacoma, WA, for Appellant.

David Zuckerman, Attorney at Law, Seattle, WA, for Respondent.

OWENS, J.

¶ 1 We review a Court of Appeals' decision holding that Gary Benn's conviction for aggravated murder violates double jeopardy. We reverse the Court of Appeals' decision and hold that a jury's failure to find an aggravating factor during the penalty phase of a capital trial does not constitute an acquittal of that aggravating factor implicating double jeopardy. We affirm the Court of Appeals on the remaining evidentiary issues.

FACTS

¶ 2 In 1990, a Pierce County jury convicted Benn of two counts of first degree murder and sentenced him to death. The jury unanimously found the existence of an aggravating factor—that Benn murdered the two victims as "part of a common scheme or plan." RCW 10.95.020(10). The jury left the verdict form regarding the "single act" aggravating factor blank. Id. Benn unsuccessfully appealed his conviction in state court. However, a federal district court granted his writ of habeas corpus and vacated Benn's convictions. Benn v. Wood, No. C98-5131RDB, 2000 WL 1031361, 2000 U.S. Dist. LEXIS 12741 (W.D. Wash. June 30, 2000), aff'd Benn v. Lambert, 283 F.3d 1040 (9th Cir. 2002).

¶ 3 The State recharged Benn with two counts of first degree murder and alleged, over Benn's objection, that the murders were committed as a "single act." The State did not seek the death penalty. The jury convicted Benn of two counts of first degree murder and found that the evidence supported the "single act" aggravating factor. The court then sentenced Benn to life in prison without the possibility of release. Benn appealed, arguing in part that the State violated double jeopardy principles when it realleged the "single act" aggravating factor. Benn argued that his first jury's silence on the aggravating factor constituted an implied acquittal terminating jeopardy.

¶ 4 Division Two of the Court of Appeals agreed with Benn. In a partially published opinion, the appellate court held that the jury's silence regarding the "single act" aggravating factor constituted an implicit acquittal of the factor for purposes of double jeopardy. The Court of Appeals affirmed the conviction, vacated the "single act" special verdict, and remanded the case for resentencing without the aggravating factor. State v. Benn, 130 Wash.App. 308, 123 P.3d 484 (2005). We granted the State's petition for review at 157 Wash.2d 1017, 142 P.3d 607 (2006).

ISSUES

¶ 5 1. Did the blank verdict form on the "single act" aggravator constitute an implied acquittal implicating double jeopardy?

¶ 6 2. Did the trial court otherwise err in admitting and/or excluding evidence at trial?

ANALYSIS

¶ 7 The double jeopardy clause states that "[n]o person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb." U.S. CONST. amend V. Similarly, the Washington Constitution states that "[n]o person shall . . . be twice put in jeopardy for the same offense." WASH. CONST. art. I, § 9. Washington's double jeopardy clause is essentially identical to its federal counterpart and thus affords no greater protection. In re Pers. Restraint of Davis, 142 Wash.2d 165, 171, 12 P.3d 603 (2000); accord State v. Linton, 156 Wash.2d 777, 782-83, 132 P.3d 127 (2006) (plurality opinion). The double jeopardy clauses prohibit the State from prosecuting a defendant for the same offense after acquittal. State v. Graham, 153 Wash.2d 400, 404, 103 P.3d 1238 (2005); Linton, 156 Wash.2d at 784, 132 P.3d 127 ("Acquittal of an offense terminates jeopardy and prohibits the State from trying the defendant a second time for the same offense.").

¶ 8 Benn contends that the blank verdict question regarding the "single act" aggravating factor constituted an implied acquittal terminating jeopardy and precluding the State's second prosecution for aggravated murder. Under the implied acquittal doctrine, a jury's silence on a charge may constitute an implied acquittal terminating jeopardy. Green v. United States, 355 U.S. 184, 190-91, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); accord State v. Davis, 190 Wash. 164, 166, 67 P.2d 894 (1937). In Green, the jury was silent as to the charge of first degree murder during Green's first trial. 355 U.S. at 187, 78 S.Ct. 221. The Supreme Court held that Green's retrial for first degree murder violated "both the letter and spirit of the Fifth Amendment." Id. at 198, 78 S.Ct. 221.

¶ 9 Applying Green, the Court of Appeals held that the blank verdict form regarding the "single act" aggravating factor in Benn's first trial constituted an implied acquittal barring Benn's subsequent prosecution for the "single act" aggravating factor. The State argues that the Court of Appeals' reliance on Green was misplaced because double jeopardy does not apply to aggravating factors.¹ This court reviews questions of law de novo. State v. Watson, 155 Wash.2d 574, 578, 122 P.3d 903 (2005).

A. Do double jeopardy principles apply to aggravating factors?

¶ 10 A jury's imposition of a life sentence in a capital case generally constitutes an acquittal of the death penalty, prohibiting the State from seeking the death penalty in the event of a retrial. E.g., Bullington v. Missouri, 451 U.S. 430, 446, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). In Bullington, the Supreme Court held that jeopardy terminates when a jury acquits a defendant of the death penalty; thus, although the State may retry a defendant for the offense of murder, it may not seek the death penalty if a previous jury has found it unwarranted. Id.; accord Arizona v. Rumsey, 467 U.S. 203, 211, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984) (holding that an acquittal of the sentence of death "bars any retrial of the appropriateness of the death penalty").

¶ 11 In the instant case, the State argues that the Court of Appeals erred by implicitly extending this general rule and holding that a jury's failure to find an aggravating factor during the penalty phase of a capital trial constitutes an acquittal of that aggravating factor. For support, the State relies on Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986). In Poland, the Supreme Court held that the State did not violate double jeopardy in seeking the death penalty upon retrial when the defendant was not acquitted of the death penalty in the first trial. Id. at 157, 106 S.Ct. 1749. The Poland Court rejected the argument "that a capital sentencer's failure to find a particular aggravating circumstance alleged by the prosecution always constitutes an `acquittal' of that circumstance for double jeopardy purposes." Id. at 155, 106 S.Ct. 1749. The Court stated that such a holding "would push the analogy on which Bullington is based past the breaking point." Id. at 156, 106 S.Ct. 1749. The Court distinguished aggravating factors from other offenses, stating that aggravating factors "are not separate penalties or offenses" but rather "`standards to guide the making of [the] choice' between the alternative verdicts of death and life imprisonment." Id. (alteration in original) (quoting Bullington, 451 U.S. at 438, 101 S.Ct. 1852). The State thus argues that double jeopardy principles do not apply to aggravating factors.

¶ 12 Benn, however, contends that Poland does not survive Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and its progeny. Id. at 609, 122 S.Ct. 2428 (holding that aggravating factors are "`the functional equivalent of an element of a greater offense'" for purposes of the Sixth Amendment (quoting Apprendi v. New Jersey, 530 U.S. 466, 494 n. 19, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000))). Despite Ring's elevation of aggravating factors to the equivalent status of elements under the Sixth Amendment, Poland's holding remains good law.

¶ 13 In the Supreme Court's post-Ring decision in Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003), Justice Scalia, writing for the majority, held that double jeopardy protections did not prevent the State from retrying a defendant for the death penalty where a jury deadlocked during the penalty phase of his first trial. Id. at 108, 123 S.Ct. 732 (citing Poland with approval). Justice Scalia then turned to the question of Ring in a section of the opinion that garnered only a plurality. Joined by Justices Thomas and Rehnquist, Justice Scalia held that in a post-Ring world, "`murder plus one or more aggravating circumstances' is a separate offense from `murder' simplicitier." Id. at 112, 123 S.Ct. 732. "If a jury unanimously concludes that a State has failed to meet its burden of proving the existence of one or more aggravating circumstances, double-jeopardy protections attach to that `acquittal' on the offense of `murder plus aggravating circumstance(s).'" Id. Under Justice Scalia's plurality, a State may retry a defendant for the death penalty unless the verdict forms establish that the jury, by unanimously rejecting all charged aggravators, "acquitted" the defendant of those aggravators and thereby created a "`legal entitlement to a life sentence.'" Id. at 110, 123 S.Ct. 732 (internal quotation marks omitted) (quoting Commonwealth v. Sattazahn, 563 Pa. 533, 548, 763 A.2d 359 (2000)).

¶ 14 Even under Justice Scalia's plurality, double jeopardy principles do not apply to individual aggravating factors. Courts interpreting the Sattazahn decision have rejected Benn's argument that a jury may "acquit" a defendant of an individual aggravating factor. E.g., Commonwealth v. May, 587 Pa. 184, 204, 898 A.2d 559 (2006) ("Sattazahn speaks to the situation where the original jury did not find any aggravating circumstances, and, thus, the sentence of life imprisonment was statutorily mandated." (emphasis...