State v. Corrado
| Citation | 915 P.2d 1121,81 Wn.App. 640 |
| Decision Date | 10 May 1996 |
| Docket Number | 19804-5-II,Nos. 19792-8-I,s. 19792-8-I |
| Court | Court of Appeals of Washington |
| Parties | The STATE of Washington, Appellant/Cross-Respondent, v. George Lewis CORRADO, Respondent/Cross-Appellant. In re the Personal Restraint Petition of George Lewis CORRADO, Petitioner. |
Michael Edward Schwartz (Court-appointed), Harrison Ladenburg & Schwartz, Tacoma, for respondent.
W. Stephen Gregorich, Pierce County Deputy Pros. Atty., Barbara L. Corey-Boulet, Pierce County Deputy Pros. Atty., Tacoma, for appellant.
George Lewis Corrado was tried without a charge. The jury found him not guilty of attempted first degree murder, but guilty of the lesser included offense of attempted second degree murder. The primary issue is whether he can be retried for one or both crimes. We hold he can be retried for attempted second degree murder, but not for attempted first degree murder.
On July 30, 1993, Corrado was jailed for shooting Dorothy Gardner. On August 2, 1993, the State charged him with attempted murder in the first degree. On September 24, 1993, the State moved to dismiss without prejudice, saying it had been unable to locate Gardner. The trial court granted the motion and dismissed without prejudice. Corrado remained in jail on other matters, and Gardner was soon found.
On October 25, 1993, Corrado was brought back to court. Although the State had not filed a new charge, the arraignment judge ordered that trial commence on November 1.
On November 1, at the beginning of trial, the trial judge advised counsel in open court that the court file did not contain a charge. The prosecutor said he would file one, but he never did.
After both parties had presented their evidence, the judge instructed the jury on attempted first degree murder and the lesser included offense of attempted second degree murder. The judge also instructed the jury that it could convict of attempted first degree murder; acquit of attempted first degree murder but convict of attempted second degree murder; or acquit entirely. The jury acquitted of attempted first degree murder, but convicted of attempted second degree murder.
Corrado appealed the conviction for attempted second degree murder. He claimed the State's failure to file a charge "deprived the [trial] court of jurisdiction" and rendered the conviction "void." 1
In July 1995, in Corrado I, 2 we ruled that because the State had failed to file a charge, the superior court had acted without jurisdiction and its acts were "void." We ordered Corrado's release unless, forthwith, he was properly charged and detained. We were not concerned with the acquittal for attempted first degree murder, because it had not been cross-appealed by the State.
A week after our ruling, the State filed an information charging attempted second degree murder. Shortly thereafter, it filed an amended information charging attempted first degree murder. Corrado moved to dismiss the amended information, arguing (1) double jeopardy, (2) violation of his constitutional right to speedy trial, and (3) governmental misconduct in violation of CrR 8.3(b). Agreeing with the first argument, but rejecting the other two, the trial court dismissed the action. The State appealed, and Corrado cross-appealed.
The State argues that Corrado was not in jeopardy during the previous trial because we held, in Corrado I, that the trial court "lacked jurisdiction" 3 for purposes of state procedural law. Thus, it says, it is entitled to retry him for attempted first degree murder. Corrado argues that he cannot be retried at all, even for attempted second degree murder. We begin by analyzing and applying the usual elements of double jeopardy. Then, we discuss whether the State's jurisdictional argument alters our analysis.
The double jeopardy clause guarantees that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb". 4 Generally, it bars trial if three elements are met: (a) jeopardy previously attached, 5 (b) jeopardy previously terminated, 6 and (c) the defendant is again in jeopardy "for the same offense." 7 The first two elements determine "former" jeopardy, which is a prerequisite to "double" jeopardy. 8 When "former" jeopardy is assumed or established, the third element determines "double" jeopardy.
Each element furthers a different policy or idea. The attachment element arises from the idea that a defendant is not in jeopardy until he or she is actually at risk of conviction; in other words, jeopardy should "attach" when an accused is at risk, but not otherwise. 9 The termination element arises from the idea that the State should have one complete opportunity to convict; in other words, jeopardy should "terminate" when the State has had--but not before the State has had--one full and fair opportunity to prosecute. 10 The same offense element arises from the idea that a defendant should not have to run the same "gauntlet" more than once, 11 and, correspondingly, that the State should not have more than one opportunity to convict a defendant for the same crime. 12
As a general rule, jeopardy attaches in a jury trial when the jury is sworn, and in a bench trial when the first witness is sworn. 13 This may not be true, however, when the trial court "lacks jurisdiction." We consider this jurisdictional exception more fully below.
As a general rule, jeopardy terminates with a verdict of acquittal. 14 Thus, "a verdict of acquittal ... is a bar to a subsequent prosecution for the same offense," 15 and an acquitted defendant may not be retried even when "the acquittal was based upon an egregiously erroneous foundation."021 = 16 Insufficient evidence is equivalent to an acquittal, 17 because no rational trier could find all essential elements of the crime charged. 18
As a general rule, jeopardy terminates with a conviction that becomes unconditionally final, 19 but not with a conviction that the defendant successfully appeals. 20 The United States Supreme Court has "expressly rejected the view that the double jeopardy provision prevent[s] a second trial when a conviction ha[s] been set aside;" instead, it has "effectively formulated a concept of continuing jeopardy that has application where criminal proceedings against an accused have not run their full course." 21 The result is that the double jeopardy clause " 'imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside,' " 22 and that a defendant's "successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence ... poses no bar to further prosecution on the same charge." 23 "[T]o require a criminal defendant to stand trial again after he has successfully invoked a statutory right of appeal to upset his first conviction is not an act of governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect," 24 and "society would pay too high a price 'were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.' " 25
Incidentally, jeopardy may or may not terminate when a trial ends without a verdict. 26 For example, it will terminate when a mistrial is declared without reason, 27 but not generally when a mistrial is due to the defendant 28 or a hung jury. 29
Once jeopardy has attached and terminated, the "same elements test," also known as the Blockburger test, 30 determines whether a defendant presently faces jeopardy "for the same offense" as before. According to that test, two offenses are not the same if each contains an element not contained in the other. 31
Applying these principles to this case, we hold that Corrado can be retried at least for attempted second degree murder. In his prior appeal, he succeeded in having his conviction set aside. Thus, his original jeopardy did not terminate; it is "continuing" rather than "former," and in the absence of "former" jeopardy he cannot show "double" jeopardy. 32
Although Corrado can be retried for attempted second degree murder, it would appear, at first glance, that he cannot be retried for attempted first degree murder. Jeopardy attached when the jury was sworn; jeopardy terminated when the jury acquitted; and the State now seeks to prosecute for the same offense as before. Thus, all three elements of double jeopardy are met, and the double jeopardy clause bars retrial for the higher crime 33--unless the State's jurisdictional argument leads to a different result.
The United States Supreme Court first pronounced a jurisdictional exception in United States v. Ball. 34 It said:
An acquittal before a court having no jurisdiction is, of course, like all the proceedings in the case, absolutely void, and therefore no bar to subsequent indictment and trial in a court which has jurisdiction of the offense. Com. v. Peters, 12 Metc. (Mass.) 387; 2 Hawk. P.C. c. 35, § 3; 1 Bish. Cr. Law, § 1028.
The Court made similar statements in at least three turn-cases 35 and one more modern case. 36 As far as we are aware, however, the Court has never decided a case in which it actually used "lack of jurisdiction" as its reason for denying double jeopardy protection.
Clearly, the exception does not apply every time a court chooses to intone "lack of jurisdiction" for state procedural law purposes. The phrase "lack of jurisdiction" has many meanings, 37 including but not limited to the following: that a court is not duly constituted; 38 that a court lacks power to hear the type of case then before it; 39 that a court lacks territorial jurisdiction (i.e., power over the place where the crime was committed); 40 that a court lacks power to deal with the type of person then before it; 41 that a court has no charge before it; 42 that a court has a defective charge before it; 43 that a court has failed to honor a...
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