State v. Gamble
| Decision Date | 10 April 2007 |
| Docket Number | No. 34125-5-II.,34125-5-II. |
| Citation | 137 Wn. App. 892,155 P.3d 962 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Jacob GAMBLE, Appellant. |
Lisa Elizabeth Tabbut, Longview, WA, for Appellant.
Michael C. Kinnie, Vancouver, WA, for Respondent.
¶ 1 Jacob Gamble and Ryan May killed Daniel Carroll. A jury originally convicted Gamble of second degree felony murder based on the predicate offense of second degree assault of Carroll. We vacated that conviction after our Supreme Court held in In re Personal Restraint of Andress, 147 Wash.2d 602, 56 P.3d 981 (2002), that felony murder could not be based on the predicate offense of second degree assault. State v. Gamble, 118 Wash.App. 332, 72 P.3d 1139 (2003) (Gamble II). The case was remanded and, on November 16, 2005, a second jury found Gamble guilty of first degree manslaughter. Following the new exceptional sentencing procedures established by the legislature in RCW 9.94A.537 (Laws of 2005, ch. 68, § 4), the jury found an aggravating sentencing factor, and the trial court imposed an exceptional sentence above the standard range. Gamble appeals his conviction and his exceptional sentence.
¶ 2 Gamble's central arguments are that the double jeopardy provisions of the federal and state constitutions and procedural rules requiring the joinder of related offenses mandate the dismissal of the first degree manslaughter charge related to his killing of Carroll. He also argues that (1) the trial court erred when it refused to give his proposed lesser included offense instruction on second degree manslaughter; (2) the facts did not support the aggravating factor the jury found; and (3) the trial court lacked the authority to impose the exceptional sentence. Holding that (1) the new charges did not implicate double jeopardy; (2) the "ends of justice" exception to the mandatory joinder rule applies and allows trial following remand; (3) the trial court did not err in refusing to give Gamble's proposed lesser included offense instruction; (4) the evidence supported the jury's aggravating factor finding; and (5) the trial court had the authority to impose the exceptional sentence, we affirm.
¶ 3 On March 26, 1999, while his parents were out of town, Andrew Young hosted a party for some high school friends including Gamble. By 11:30 p.m., there were over 50 young people at the party; most of them were drinking alcohol or smoking marijuana. State v. Gamble, 154 Wash.2d 457, 460, 114 P.3d 646 (2005) (Gamble III).
¶ 4 That night, Gamble's friend, Kevin Phommahasay, was bragging that he was going to fight Curtis Esteban. When Esteban and his friend, Carroll, arrived at the party, Phommahasay immediately confronted Esteban on the front lawn of the house and hit him on the head with a beer bottle. Gamble III, 154 Wash.2d at 460, 114 P.3d 646. Carroll, who knew that Esteban suffered from seizures, ran toward the fight in an attempt to stop it.
¶ 5 Gamble punched Carroll in the face, knocking him to the ground; Carroll hit his head on the cement sidewalk. As he lay unconscious on the sidewalk, Gamble and May kicked and stomped on Carroll. When they finished the attack, May took Carroll's cell phone. Carroll never regained consciousness, and doctors pronounced him dead five days later on April 1, 1999.
¶ 6 The police arrested Gamble soon after the fight.1 In a taped statement,2 Gamble told police that he had become "caught up in the moment" and that he had intentionally punched Carroll. 12C Report of Proceedings at 1193-1211.
¶ 7 The State charged Gamble with first degree felony murder in the course of a robbery3 and second degree felony murder with the predicate offense of second degree assault.4 On February 12, 2000, a jury found him guilty on both counts. Gamble II, 118 Wash.App. at 334, 72 P.3d 1139. In an unpublished opinion, we reversed the first degree felony murder conviction, concluding that the evidence that May took Carroll's cell phone was insufficient to support the predicate crime of robbery necessary to convict Gamble of first degree felony murder as charged. State v. Gamble, 116 Wash.App. 1016, 2003 WL 1298906, 2003 Wash.App. LEXIS 1047 (2003) (Gamble I).
¶ 8 While Gamble's first appeal was pending, our Supreme Court issued Andress. We ordered additional briefing on the impact of Andress on Gamble's case, Gamble III, 154 Wash.2d at 460, 114 P.3d 646, and concluded that Andress required reversal of Gamble's second degree felony murder conviction.5 Gamble II, 118 Wash.App. at 335-36, 72 P.3d 1139. Holding that first degree manslaughter was a lesser included offense of second degree felony murder when the predicate second degree assault was charged under RCW 9A.36.021(1)(a),6 we remanded the case back to the trial court with directions that it enter a guilty verdict on the lesser included offense of first degree manslaughter under RCW 9A.32.060(1)(a).7 Gamble II, 118 Wash.App. at 340, 72 P.3d 1139.
¶ 9 Gamble petitioned our Supreme Court for review. The court accepted the petition for review on the sole issue of whether first degree manslaughter is a lesser included offense of second degree felony murder where assault is the predicate felony. Gamble III, 154 Wash.2d at 462, 114 P.3d 646. Relying in part on cases in which the predicate assault had been charged under a different section of the second degree assault statute, RCW 9A.36.021(1)(c), which required an assault with a deadly weapon, State v. Davis, 121 Wash.2d 1, 4, 846 P.2d 527 (1993), and State v. McJimpson, 79 Wash.App. 164, 171-72, 901 P.2d 354 (1995), review denied, 129 Wash.2d 1013, 917 P.2d 576 (1996),8 the Supreme Court held that second degree felony murder has no lesser included offenses and stated that we had "erroneously remanded for an entry of conviction of first degree manslaughter." Gamble III, 154 Wash.2d at 460, 114 P.3d 646. The court then remanded the case to the trial court for further, unspecified proceedings "in accord with" its decision. Gamble III, 154 Wash.2d at 470, 114 P.3d 646.
¶ 10 On remand, the State charged Gamble with second degree intentional murder and, in the alternative, first degree manslaughter. The State also sought an exceptional sentence specifying, under both counts of the information, that Carroll was "particularly vulnerable or incapable of resistance" when Gamble committed the act. Clerk's Papers (CP) at 91. Before trial, Gamble argued that constitutional double jeopardy provisions and mandatory joinder rules required dismissal of the charges. The trial court denied the motion.
¶ 11 Gamble's second trial began on November 7, 2005. Over Gamble's objection, the trial court declined to give his proposed second degree manslaughter instruction holding that, although second degree manslaughter was a lesser offense of first degree manslaughter, the evidence presented to the jury did not support such an instruction.
¶ 12 The jury found Gamble guilty of first degree manslaughter. Following the verdict, the trial court orally instructed the jury on the aggravating factor of particular vulnerability based on Carroll being unconscious during a portion of the attack. The jury returned a special verdict finding Carroll was particularly vulnerable. The trial court sentenced Gamble to 102 months and added 48 months to reflect Carroll's particular vulnerability, for a total of 150 months.9 Gamble again appeals.
¶ 13 Gamble first asserts that constitutional double jeopardy provisions bar the State from filing intentional murder and first degree manslaughter charges for Carroll's death, arguing that a conviction on either of these charges would result in him being "twice punished for the same offense, homicide." Br. of Appellant at 9. We disagree.
¶ 14 The double jeopardy clause of the Fifth Amendment of the federal constitution and article I, section 9 of the Washington constitution10 contain three separate constitutional protections: (1) protection against a second prosecution for the same offense after acquittal; (2) protection against a second prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense. State v. Wright, 131 Wash.App. 474, 478, 127 P.3d 742 (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)), review granted, ___ Wash.2d ___, ___ P.3d ___, 2007 Wash. LEXIS 139 (Wash. Mar. 8, 2007); see also, State v. Gocken, 127 Wash.2d 95, 100, 896 P.2d 1267 (1995). An accused must "suffer jeopardy before he can suffer double jeopardy." Serfass v. United States, 420 U.S. 377, 393, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975).
¶ 15 But 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" on any ground other than insufficiency of the evidence because the defendant's appeal is part of the initial or continuing jeopardy. State v. Corrado, 81 Wash.App. 640, 647-48, 915 P.2d 1121 (1996) (quoting Tibbs v. Florida, 457 U.S. 31, 40, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982)); see also United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964); State v. Brown, 127 Wash.2d 749, 756-57, 903 P.2d 459 (1995). Thus, if a defendant's conviction is reversed on trial court errors or legal grounds other than insufficiency of evidence, the State may retry the defendant "for the convicted offense and any lesser included offenses." State v. Anderson, 96 Wash.2d 739, 742, 638 P.2d 1205, cert. denied, 459 U.S. 842, 103 S.Ct. 93, 74 L.Ed.2d 85 (1982).
¶ 16 Here, we reversed Gamble's first degree felony murder conviction because the evidence was insufficient to prove Gamble intended to rob Carroll. Gamble I, 116 Wash.App. 1016, 2003 WL 1298906 at *7, 2003 Wash.App. LEXIS 444 at *8. Thus, double jeopardy clearly bars the State from retrying Gamble for...
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... ... Hall, 481 U.S. at 404, 107 S.Ct. 1825 ... ¶ 19 As in Hall, the defendants' convictions were reversed because the State proceeded under the wrong statute. 6 See State v. Gamble, 137 Wash.App. 892, 901, 155 P.3d 962 (2007), review granted, 164 Wash.2d 1020, 196 P.3d 132 (2008) (retrial permissible where defendant's second degree felony murder conviction was vacated due to the invalidity of the charge, following Andress ) ... ¶ 20 In Parker v ... ...
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...rule precludes it from later charging that defendant with the related offense arising out of the same conduct . . . ." State v. Gamble, 137 Wn.App. 892, 902, 155 P.3d 962 (2007), aff'd, 168 Wn.2d 161, 225 P.3d 973 (2010). And adopting the State's approach would frustrate the rule's purpose—......
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