State v. Ervin

• Citation: 147 P.3d 567,158 Wn.2d 746
• Decision Date: 30 November 2006
• Docket Number: No. 78062-5.,78062-5.
• Court: United States State Supreme Court of Washington
• Parties: STATE of Washington, Petitioner, v. Quentin ERVIN, Respondent.

147 P.3d 567

158 Wn.2d 746

STATE of Washington, Petitioner, v. Quentin ERVIN, Respondent.

No. 78062-5.

Supreme Court of Washington, En Banc.

Argued September 21, 2006.

Decided November 30, 2006.

Andrea Ruth Vitalich, King County Prosecutor's Office, Seattle, WA, for Petitioner.

Howard Lee Phillips, Phillips Law, Seattle, WA, for Respondent.

BRIDGE, J.

¶ 1 The State seeks to retry Quentin Ervin on charges of aggravated first degree murder and attempted first degree murder. In 1994, the State charged Ervin and his codefendant Eric Smiley with aggravated first degree murder, attempted first degree murder, and second degree felony murder for their involvement in the shooting death of a Seattle police officer. The jury was unable to agree on the first two charges for Ervin but found him guilty of felony murder. Ervin successfully vacated that conviction, based on In re Personal Restraint of Andress, 147 Wash.2d 602, 56 P.3d 981 (2002), and In re Personal Restraint of Hinton, 152 Wash.2d 853, 100 P.3d 801 (2004). He now argues that the State may not retry him on the greater charges, as doing so would violate double jeopardy prohibitions. We disagree and reverse the superior court's dismissal of those charges.

I Facts and Procedural History

¶ 2 On July 7, 1994, the State charged Smiley and Ervin in the alternative with aggravated murder in the first degree (count I); attempted murder in the first degree (count II); and murder in the second degree (felony murder with assault as the predicate felony) (count III). The joint trial began on November 20, 1995, and lasted more than three months. Eighty-six witnesses testified.

¶ 3 At the conclusion of the trial, the court instructed the jury, inter alia, that

[w]hen completing the verdict forms, you will first consider the crime of Murder in the First Degree, as charged in Count I. If you unanimously agree on a verdict, you must fill in the blank provided in verdict form A the words "not guilty" or the word "guilty," according to the decision you[ ] reach. If you cannot agree on a verdict, do not fill in the blank provided in Verdict Form A.

If you find the defendant guilty on verdict form A, do not use verdict forms B or C. If you find the defendant not guilty of the crime of Murder in the First Degree, or if after full and careful consideration of the evidence you cannot agree on that crime, you will consider the alternative crime of Attempted Murder in the First Degree, as charged in Count II.

Clerk's Papers (CP) at 287. The instructions went on to direct the jury to follow the same procedures for counts II and III and verdict forms B and C,¹ respectively.

¶ 4 After five weeks of deliberations, the jury announced that it was unable to reach a unanimous verdict.² The court asked the jury to continue deliberating, which it did for two more days. At that point, the jury sent a message to the court stating:

"The jury has continued to deliberate according to the court's direction. We are still unable to reach a unanimous verdict on any of the three charges against Eric Smiley. Since our last inquiry to the court, there has been no movement toward a unanimous verdict on any of the counts."

"We believe that additional deliberation would not result in a unanimous verdict on any of the three counts. We have stopped deliberations and asked for the court's direction." Mot. for Discretionary Review, App. C at 3. The jury had reached a verdict as to Ervin. See id. at 10.

¶ 5 The State asked the court to direct the jury to continue deliberating. Smiley's attorney deferred to the court's discretion, but pointed out that it might be coercive to ask the jury to continue deliberations. Ervin's attorney objected to any further delay in regard to his client and asked that the verdict in regard to Ervin be read.³ The court decided to end deliberations and discharge the jury after reading the verdict for Ervin.

¶ 6 The jury did not fill in the blanks to indicate "guilty" or "not guilty" on Ervin's verdict forms A or B for counts I and II; rather, someone put a slash mark through the forms and wrote "not used." CP at 118-19.⁴ However, after finding Ervin "not guilty of [count I (aggravated first degree murder) or count II (attempted first degree murder)], or being unable to unanimously agree" as to those charges, the jury ultimately found Ervin guilty of count III, murder in the second degree (felony murder). See CP at 117-19. The court sentenced Ervin to an exceptional sentence of 328 months, citing his extensive juvenile record. The Court of Appeals affirmed Ervin's conviction, State v. Ervin, noted at 103 Wash.App. 1013, 2000 WL 1634579, 2000 Wash.App. LEXIS 2111, and this court denied review, State v. Ervin, 143 Wash.2d 1014, 22 P.3d 802 (2001).

¶ 7 Following this court's decisions in Andress, 147 Wash.2d 602, 56 P.3d 981, and Hinton, 152 Wash.2d 853, 100 P.3d 801, Ervin filed a personal restraint petition (PRP) in the Court of Appeals, challenging his conviction for felony murder where assault was the predicate felony. The Court of Appeals granted his PRP on December 29, 2004, found Andress controlling, and vacated his conviction.

¶ 8 The State filed a motion for reconsideration in the Court of Appeals and a motion for discretionary review in this court on the issue of whether the State could charge Ervin with aggravated murder and attempted first degree murder on remand. Both courts determined that the trial court should decide the issue in the first instance.

¶ 9 Then, on October 11, 2005, the State charged Ervin with aggravated murder in the first degree (count I) and attempted murder in the first degree (count II). Ervin responded by filing a motion, asking the court to dismiss the charges based upon double jeopardy principles and to enter a directed verdict against Ervin for second degree assault. The trial judge rejected Ervin's motion for a directed verdict. He also ruled that the State could not charge Ervin with aggravated first degree murder and attempted first degree murder but could charge him with intentional second degree murder. On December 2, 2005, the State then filed a second amended information charging Ervin with murder in the second degree, and the court arraigned him on those charges. Although he denied the State's motion to stay the proceedings pending appellate review of the ruling, the trial judge recommended that the State seek discretionary review directly to this court. This court granted review on January 25, 2006.

II Analysis

¶ 10 The fifth amendment to the United States Constitution and article I, section 9 of the Washington State Constitution prohibit the State from twice putting a person in jeopardy for the same offense. "The federal and state [double jeopardy] provisions afford the same protections and are `identical in thought, substance, and purpose.'" In re Pers. Restraint of Davis, 142 Wash.2d 165, 171, 12 P.3d 603 (2000) (quoting State v. Schoel, 54 Wash.2d 388, 391, 341 P.2d 481 (1959)). The double jeopardy clause applies where (1) jeopardy has previously attached, (2) that jeopardy has terminated, and (3) the defendant is in jeopardy a second time for the same offense in fact and law. See State v. Corrado, 81 Wash.App 640, 645, 915 P.2d 1121 (1996); In re Pers. Restraint of Orange, 152 Wash.2d 795, 820, 100 P.3d 291 (2004). Where these elements have been met, the double jeopardy clause bars the State from retrying a defendant. See Corrado, 81 Wash.App. at 645, 915 P.2d 1121. In the instant case only the second element is at issue. Thus, we must decide whether jeopardy has terminated on the charges of aggravated first degree murder and attempted first degree murder, thereby barring the State from retrying Ervin on these charges.

¶ 11 Jeopardy may be terminated in one of three ways: (1) when the defendant is acquitted, Richardson v. United States, 468 U.S. 317, 325, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984); Corrado, 81 Wash.App. at 646, 915 P.2d 1121; (2) when the defendant is convicted and that conviction is final, see Corrado, 81 Wash.App. at 647, 915 P.2d 1121; and (3) when the court dismisses the jury without the defendant's consent and the dismissal is not in the interest of justice, see Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957) ("[A] defendant is placed in jeopardy once he is put to trial before a jury so that if the jury is discharged without his consent he cannot be tried again."). A hung jury is an unforeseeable circumstance requiring dismissal of the jury in the interest of justice. See Green, 355 U.S. at 188, 78 S.Ct. 221; State v. Jones, 97 Wash.2d 159, 162, 641 P.2d 708 (1982) (finding that discharge has the same effect as acquittal "`unless such discharge was necessary in the interest of the proper administration of public justice'" (emphasis omitted) (quoting State v. Connors, 59 Wash.2d 879, 883, 371 P.2d 541 (1962))).⁵

1. Acquittal as Terminating Jeopardy

¶ 12 Acquittal terminates jeopardy. Richardson, 468 U.S. at 325, 468 U.S. 317. This court has held that if a jury considering multiple charges renders a verdict as to one of the charges but is silent on the other charge, such action constitutes an implied acquittal barring retrial on those charges. See Schoel, 54 Wash.2d at 394, 341 P.2d 481 (finding that where the jury returned a verdict of guilty for murder in the second degree but left the verdict form blank for murder in the first degree, the jury had implicitly acquitted the defendant of the greater offense); State v. Davis, 190 Wash. 164, 166-67, 67 P.2d 894 (1937) (finding that where the jury rendered a verdict on one count but was silent as to the other two, and the record did not show why the jury was discharged before rendering a verdict on those counts, such action was "`equivalent to acquittal'" (quoting Selvester v. United States, 170 U.S. 262, 269, 18 S.Ct. 580, 42 L.Ed. 1029 (1898))); see also Green, 355 U.S. at 190-91, 78 S.Ct. 221 (finding implied...