State v. Daniels

• Decision Date: 03 May 2007
• Docket Number: No. 76802-1.,76802-1.
• Citation: 156 P.3d 905,160 Wn.2d 256
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. Carissa Marie DANIELS, Respondent.

156 P.3d 905

160 Wn.2d 256

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

No. 76802-1.

Supreme Court of Washington, En Banc.

Argued February 13, 2007.

Decided May 3, 2007.

Kathleen Proctor, Pierce County Prosecuting Attorneys Office, Tacoma, WA, for Petitioner.

Clayton Richard Dickinson, Fircrest, WA, for Respondent.

SANDERS, J.

¶ 1 We are asked to decide whether the State may retry Carissa Daniels without violating double jeopardy. Daniels was charged with homicide by abuse and second degree murder, predicated on either assault or criminal mistreatment. The jury failed to agree on the homicide by abuse charge but found Daniels guilty of second degree murder. After the Court of Appeals reversed Daniels's murder conviction because it was predicated on assault, it held the State could recharge her on murder predicated on criminal mistreatment but could not retry her on the homicide by abuse charge because the jury's silence acted as an implied acquittal. The Court of Appeals also affirmed the trial court's suppression of statements Daniels made to police before they gave her any Miranda¹ warnings.

¶ 2 We hold the State may retry Daniels on both charges. Jeopardy has not terminated on the homicide by abuse charge because there was no implied acquittal, and jeopardy has not terminated on the second degree murder charge because the conviction was reversed for reasons other than insufficient evidence. We also affirm the Court of Appeals' exclusion of statements Daniels made before she was given her Miranda warnings.

FACTS

¶ 3 In July 2000 seventeen-year-old Carissa Daniels gave birth to her son Damon. Nine weeks later Damon was dead. Carissa was charged with homicide by abuse and murder in the second degree — domestic violence. The second degree felony murder charge was predicated either on second degree assault or first degree criminal mistreatment.

¶ 4 At trial the jury was given two verdict forms: verdict form A pertained to the homicide by abuse charge and verdict form B pertained to the second degree murder charge. The jury was instructed to fill in not guilty or guilty on form A if it unanimously agreed on a verdict as to the homicide by abuse charge, otherwise it should leave it blank. Clerk's Papers (CP) at 57 (Jury Instruction 23).² If the jury either found Daniels not guilty of homicide by abuse or could not agree as to that charge, the jury was then instructed to consider the second degree felony murder charge.

¶ 5 The jury left form A blank and found Daniels guilty of murder in the second degree. CP at 107-08. Daniels appealed, arguing that after our decision in In re Personal Restraint of Andress, 147 Wash.2d 602, 56 P.3d 981 (2002), assault could not be a predicate offense for second degree murder. State v. Daniels, 124 Wash.App. 830, 844, 103 P.3d 249 (2004) (citing Andress). The Court of Appeals agreed, reversed the conviction, and remanded for a new trial. Furthermore, the Court of Appeals 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 filed its opinion, we decided State v. Ervin, 158 Wash.2d 746, 147 P.3d 567 (2006), further elaborating on this issue.

¶ 6 The State petitioned this court for review, seeking to retry Daniels on the homicide by abuse charge and to allow statements Daniels made before she was given Miranda warnings. Daniels cross-petitioned, arguing she cannot be retried for second degree felony murder predicated on criminal mistreatment. On October 6, 2006, we accepted review.

ANALYSIS

¶ 7 Double jeopardy and Miranda claims are issues of law requiring de novo review. State v. Jackman, 156 Wash.2d 736, 746, 132 P.3d 136 (2006). Unchallenged findings of facts, including those made during suppression hearings, are binding on appeal. State v. Hill, 123 Wash.2d 641, 647, 870 P.2d 313 (1994).

¶ 8 The United States Constitution guarantees "[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. The Washington Constitution guarantees "[n]o person shall . . . be twice put in jeopardy for the same offense." Wash. Const. art. I, § 9. We interpret both clauses identically. State v. Gocken, 127 Wash.2d 95, 107, 896 P.2d 1267 (1995); State v. Schoel, 54 Wash.2d 388, 391, 341 P.2d 481 (1959) (both clauses are "identical in thought, substance, and purpose").

¶ 9 Three elements must be met for a defendant's double jeopardy rights to be violated: (1) jeopardy must have previously attached, (2) jeopardy must have previously terminated, and (3) the defendant is again being put in jeopardy for the same offense. State v. Corrado, 81 Wash.App. 640, 645, 915 P.2d 1121 (1996). Our concern here is whether jeopardy terminated for either charge.

I. THERE WAS NO IMPLIED ACQUITTAL TERMINATING JEOPARDY ON DANIELS'S HOMICIDE BY ABUSE CHARGE

¶ 10 "[T]he protection of the Double Jeopardy Clause by its terms applies only if there has been some event, such as an acquittal, which terminates the original jeopardy." Richardson v. United States, 468 U.S. 317, 325, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984). Jury silence can be construed as an acquittal and can therefore act to terminate jeopardy. Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957) (stating jury's silence acted as implied acquittal). But such is not the case when a jury fails to agree and such disagreement is evident from the record. Ervin, 158 Wash.2d at 753-54, 147 P.3d 567.

¶ 11 Daniels argues her conviction for second degree murder terminates jeopardy for all charges because the State already had an opportunity to convict her for homicide by abuse and was unsuccessful. Therefore, she claims it is unfair to allow the State to raise the specter of a retrial on this charge if a defendant is successful in reversing the conviction on other included charges.³ This argument has appeal on purely fairness grounds, and if we were deciding this as a matter of first impression, perhaps we would agree. But for over a century the United States Supreme Court has held that when a jury is unable to agree, jeopardy has not terminated. Selvester v. United States, 170 U.S. 262, 269, 18 S.Ct. 580, 42 L.Ed. 1029 (1898).

Doubtless, where a jury, although convicting as to some, are silent as to other counts in an indictment, and are discharged without the consent of the accused, . . . the effect of such discharge is "equivalent to acquittal," because, as the record affords no adequate legal cause for the discharge of the jury, any further attempt to prosecute would amount to a second jeopardy, as to the charge with reference to which the jury has been silent. But such obviously is not the case, where a jury have not been silent as to a particular count, but where, on the contrary, a disagreement is formally entered on the record. The effect of such entry justifies the discharge of the jury, and therefore a subsequent prosecution for the offence as to which the jury has disagreed and on account of which it has been regularly discharged, would not constitute second jeopardy.

Id. (emphasis added); see also State v. Davis, 190 Wash. 164, 67 P.2d 894 (1937) (quoting same). In Richardson the United States Supreme Court specifically found the failure of a jury to reach a verdict does not terminate the original jeopardy. Richardson, 468 U.S. at 325-26, 104 S.Ct. 3081 ("[W]e hold . . . the failure of the jury to reach a verdict is not an event which terminates jeopardy. . . . The Government, like the defendant, is entitled to resolution of the case by verdict from the jury, and jeopardy does not terminate when the jury is discharged because it is unable to agree.").

¶ 12 During oral arguments, defense counsel pointed to language in Corrado, where the court held:

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.

81 Wash.App. at 645-46, 915 P.2d 1121. This is certainly true. And while the State is allowed only one bite at the apple, its one bite is a full one. The Supreme Court has "effectively formulated a concept of continuing jeopardy that has application where criminal proceedings against an accused have not run their full course." Price v. Georgia, 398 U.S. 323, 326, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). When the jury cannot decide on a verdict, and disagreement is formally entered onto the record, then the State's one bite continues and the defendant can be retried.

¶ 13 The issue before us today is nearly identical to what we considered in Ervin, 158 Wash.2d 746, 147 P.3d 567.⁴ Ervin was charged with aggravated first degree murder, attempted first degree murder, and second degree felony murder. The jury was unable to agree on the first two charges but found Ervin guilty of second degree felony murder. Following Andress, the Court of Appeals vacated Ervin's felony murder conviction as it was impermissibly predicated on assault. But nevertheless we unanimously found the jury was unable to agree on the first two charges and therefore jeopardy had not terminated on these offenses. Id. at 756, 147 P.3d 567.

¶ 14 A jury is presumed to follow the instructions given. Id. (citing State v. Stein, 144 Wash.2d 236, 247, 27 P.3d 184 (2001)). And both Ervin's and Daniels's juries were similarly instructed to leave form A blank only if they could not agree, otherwise they were to write guilty or not guilty. Id. at 750, 147 P.3d 567; CP at 57. And in Ervin because the jury left the verdict form blank and unsigned, we reasoned:

the blank verdict forms indicate on their face that the jury was unable to agree. Because the jurors were unable to agree, we cannot consider them to have acquitted Ervin of the greater charges. Thus, Ervin has no...