State v. Daniels

• Decision Date: 12 February 2009
• Docket Number: No. 76802-1.,76802-1.
• Citation: 165 Wn.2d 627,200 P.3d 711
• Parties: STATE of Washington, Petitioner, v. Carissa Marie DANIELS, Respondent.
• Court: Washington Supreme Court

200 P.3d 711

165 Wn.2d 627

STATE of Washington, Petitioner, v. Carissa Marie DANIELS, Respondent.

No. 76802-1.

Supreme Court of Washington, En Banc.

Argued March 20, 2008.

Decided February 12, 2009.

Appeal from Pierce County Superior Court, (00-1-05286-5), Brian Maynard Tollefson, J.

Pierce County Prosecutor's Office, Kathleen Proctor, Tacoma, WA, for Petitioner.

Clayton Richard Dickinson, Attorney at Law, Fircrest, WA, for Respondent.

C. JOHNSON, J.

¶ 1 An opinion in this case was reported in State v. Daniels, 160 Wash.2d 256, 156 P.3d 905 (2007). We granted a motion for reconsideration, heard oral argument, and now adhere to our prior published opinion.

WE CONCUR: OWENS, FAIRHURST, and J. JOHNSON, JJ.

MADSEN, J. (concurring).

¶ 2 The Ninth Circuit's decision in Brazzel v. Washington, 491 F.3d 976 (9th Cir.2007) provides an interesting perspective, but I do not believe that it compels a different result upon reconsideration of this case. The jury instruction at issue works to the advantage of the defendant and the State by permitting a conviction on a lesser charge if the jury cannot agree on the greater. But the fact that the instruction was followed does not lead to the conclusion that double jeopardy principles bar retrial on the homicide by abuse charge.

¶ 3 The defendant has the "`valued right to have his trial completed by a particular tribunal.'" Richardson v. United States, 468 U.S. 317, 325, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984) (quoting Wade v. Hunter, 336 U.S. 684, 688-89, 69 S.Ct. 834, 93 L.Ed. 974 (1949)). The manner in which a jury can proceed given the instruction in this case is predictable and readily apparent to defendant and State alike. By agreeing to this instruction, the defendant also agreed to the unsurprising course his jury might follow in accord with the instruction. He is therefore in no position to complain if his jury failed to enter a verdict on the greater charge and a different jury must complete his trial following reversal of his conviction for second degree murder.

¶ 4 I concur in the result reached in the lead opinion.

SANDERS, J. (dissenting).

¶ 5 The majority invites me to dissent to my own opinion, an invitation I necessarily accept. "Wisdom too often never comes, and so one ought not to reject it merely because it comes late." Henslee v. Union Planters Nat'l Bank & Trust Co., 335 U.S. 595, 600, 69 S.Ct. 290, 93 L.Ed. 259 (1949) (Frankfurter, J., dissenting).

FACTS

¶ 6 On July 9, 2000, 17-year-old Carissa Daniels gave birth to her son, Damon. Nine weeks later Damon was dead. Daniels was subsequently charged with homicide by abuse and felony murder in the second degree — domestic violence. The second degree felony murder charge was predicated on either second degree assault or first degree criminal mistreatment.¹ Daniels faced a jury trial on these charges.

¶ 7 At the close of evidence the jury was given two verdict forms: form A pertained to the homicide by abuse charge and form B pertained to the second degree felony murder charge. The jury was instructed to fill in guilty or not guilty on form A if it unanimously agreed to the charge of homicide by abuse, otherwise it should leave this form blank. The jury was instructed to consider the second degree felony murder charge and use form B, if it found Daniels not guilty of homicide by abuse or could not agree on that charge.²

¶ 8 The jury left form A blank and used form B to find Daniels guilty of murder in the second degree. Daniels appealed, arguing our decision in Andress precluded use of assault as a predicate offense for second degree felony murder. State v. Daniels, 124 Wash.App. 830, 844, 103 P.3d 249 (2004) (citing In re Pers. Restraint of Andress, 147 Wash.2d 602, 56 P.3d 981 (2002)). The Court of Appeals reversed Daniels's conviction for felony murder as it may have been predicated on assault and remanded for a new trial. The Court of Appeals also held the State could not retry her for homicide by abuse because the jury's silence on that charge acted as an implied acquittal. After the Court of Appeals published its opinion, we decided both Linton³ and Ervin,⁴ further elaborating on this issue.

¶ 9 The State petitioned this court for review, seeking to retry Daniels on homicide by abuse. Daniels cross-petitioned, asking this court to determine whether she may be retried for second degree felony murder predicated on criminal mistreatment.⁵ We accepted review, heard argument, and published an opinion allowing for retrial on homicide by abuse and second degree murder predicated on criminal mistreatment. Daniels, 160 Wash.2d 256, 156 P.3d 905 (2007). Shortly thereafter, the Ninth Circuit Court of Appeals published Brazzel v. Washington, 491 F.3d 976 (9th Cir.2007), which considered the same question but reached the opposite conclusion. Based in part on the Ninth Circuit's reasoning in Brazzel, Daniels filed a motion for reconsideration, which we granted.

ANALYSIS

¶ 10 The Fifth Amendment to the United States Constitution declares, "[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.⁶ Jeopardy in this context refers to being subject to the potential of punishment for an act, not the actual punishment for the act. See Price v. Georgia, 398 U.S. 323, 326, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970) (quoting United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 41 L.Ed. 300 (1896)). On its face the double jeopardy clause prohibits the State from retrying an individual for an offense where jeopardy for that offense has attached and terminated.⁷

¶ 11 The original majority opinion erred by focusing too squarely on whether Daniels's jeopardy terminated on the homicide by abuse charge through an implied acquittal. It reasoned that an acquittal could not be implied because the jury was specifically instructed that it need not return a verdict on homicide by abuse if it was in disagreement; rather, it could proceed to return a verdict on the lesser offense of second degree felony murder. Daniels, 160 Wash.2d at 262-65, 156 P.3d 905.

¶ 12 The primary flaw in the original majority's analysis was its failure to perceive that under United States Supreme Court precedent, when an individual is forced to "run the gantlet" on a charge and the jury fails to double jeopardy prohibits retrial on that charge. Green v. United States, 355 U.S. 184, 190, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). Here Daniels "ran the gantlet" when she "was in direct peril of being convicted and punished" for homicide by abuse at her first trial, but "the jury refused to convict" her. Id. And because she "ran the gantlet" on homicide by abuse, the State may not place her in jeopardy for that crime again. Id. This failure in analysis led to a dual flaw in the original majority opinion. First it failed to recognize that jeopardy may terminate for reasons other than an implied acquittal. Second it failed to recognize the use of an "unable to agree" instruction standing alone is insufficient to distinguish this case from other lesser included offense cases.

I. Jeopardy terminated when the jury was dismissed without returning a verdict on the greater offense despite having the opportunity to do so

¶ 13 Jeopardy terminates when the jury is dismissed without returning a verdict despite having a full opportunity to do so. Id. at 184, 78 S.Ct. 221. In Green the Court found the Fifth Amendment prohibits a second trial on a charge where the jury fails to "return[] any express verdict on that charge." Id. at 191, 78 S.Ct. 221. The Court provided two rationales for this holding. It first applied the doctrine of implied acquittal but also enunciated a second rationale:

Yet [the jury] was given a full opportunity to return a verdict and no extraordinary circumstances appeared which prevented it from doing so. Therefore it seems clear, under established principles of former jeopardy, that Green's jeopardy for first degree murder came to an end when the jury was discharged so that he could not be retried for that offense.

Id. Therefore under Green jeopardy terminates either when a jury implies an acquittal by its actions OR when a jury is dismissed without returning an express verdict on the charge.

¶ 14 In Price, 398 U.S. 323, 90 S.Ct. 1757, the United States Supreme Court reiterated the validity of these two methods of terminating jeopardy. The Court described Green's two methods of terminating jeopardy.

First, the Court considered the first jury's verdict of guilty on the second-degree murder charge to be an "implicit acquittal" on the charge of first-degree murder. Second, and more broadly, the Court reasoned that petitioner's jeopardy on the greater charge had ended when the first jury "was given a full opportunity to return a verdict" on that charge and instead reached a verdict on the lesser charge.

Price, 398 U.S. at 328-29, 90 S.Ct. 1757 (quoting Green, 355 U.S. at 191, 78 S.Ct. 221). By reiterating both of Green's rationales, the Supreme Court in Price firmly reaffirmed that jeopardy for an offense may terminate under either.

¶ 15 Here the jury was given a full and fair opportunity to convict Daniels of homicide by abuse in the first trial but failed to do so. Retrial on this count is therefore barred by double jeopardy,⁸ absent "manifest necessity." United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824). The most common example of "manifest necessity" to allow retrial is a mistrial based on a hung jury. Richardson v. United States, 468 U.S. 317, 324, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984) ("[W]e have constantly adhered to the rule that a retrial following a `hung jury' does not violate the Double Jeopardy Clause.") (citing Logan v. United States, 144 U.S. 263, 297-98, 12 S.Ct. 617, 36 L.Ed. 429 (1892)).

¶ 16 However, a mistrial because of a hung jury is limited to situations where the jury is "genuinely deadlocked" and requires the trial court to use its...