State v. Gamble

• Decision Date: 28 January 2010
• Docket Number: No. 80405-2.,No. 80469-9.,No. 80536-9.,No. 81389-2.,No. 80131-2.,80131-2.,80405-2.,80469-9.,80536-9.,81389-2.
• Citation: 168 Wn.2d 161,225 P.3d 973
• Parties: STATE of Washington, Respondent, v. Jacob GAMBLE, Petitioner. State of Washington, Respondent, v. Rodney James Harris, Petitioner. State of Washington, Respondent, v. Gantry Lomone Mathews, Petitioner. State of Washington, Respondent, v. Leron Ford, Petitioner. State of Washington, Respondent, v. James G. Alexander, Petitioner.
• Court: Washington Supreme Court

225 P.3d 973

168 Wn.2d 161

STATE of Washington, Respondent, v. Jacob GAMBLE, Petitioner.

State of Washington, Respondent, v. Rodney James Harris, Petitioner.

State of Washington, Respondent, v. Gantry Lomone Mathews, Petitioner.

State of Washington, Respondent, v. Leron Ford, Petitioner.

State of Washington, Respondent, v. James G. Alexander, Petitioner.

No. 80131-2.

No. 80405-2.

No. 80469-9.

No. 80536-9.

No. 81389-2.

Supreme Court of Washington, En Banc.

Argued June 30, 2009.

Decided January 28, 2010.

Lisa Elizabeth Tabbut, Attorney at Law, Longview, WA, Thomas Michael Kummerow, Washington Appellate Project, Kathryn A. Russell Selk, Russell Selk Law Office, Eric Broman, Nielsen Broman & Koch PLLC, Seattle, WA, for Petitioner.

Michael C. Kinnie, Clark County Prosecutor's Office, Vancouver, WA, Kathleen Proctor, Pierce County Prosecuting Atty. Office, Tacoma, WA, Gregory Marshall Banks, Island County Prosecutor's Office, Coupeville, WA, Andrea Ruth Vitalich, King County Prosecutor's Office, Seattle, WA, for Respondent.

MADSEN, C.J.

¶ 1 In each of these consolidated cases the primary issue is whether the mandatory joinder rule barred the State from bringing additional homicide charges against the defendants after the defendants' original convictions for second degree felony murder was overturned as a result of this court's decision in In re Personal Restraint of Andress, 147 Wash.2d 602, 56 P.3d 981 (2002). We conclude that the mandatory joinder rule does not bar the homicide charges brought against the defendants.

FACTS

¶ 2 Each of the defendants was originally convicted of second degree felony murder with assault as the predicate felony. Subsequent to their convictions, this court held in Andress that under former RCW 9A.32.050 (1976) a conviction of second degree felony murder could not be based on assault as the predicate felony. All of the defendants challenged their second degree felony murder convictions (on appeal or through a personal restraint petition) and either the convictions were vacated in light of Andress and In re Personal Restraint of Hinton, 152 Wash.2d 853, 100 P.3d 801 (2004), or, after reversal, retrial on the felony murder charge was precluded by Andress. Each of the defendants was then tried on new charges, including second degree intentional murder, homicide by abuse, and manslaughter. In each case, the defendant contended that under the mandatory joinder rule the new charges had to have been joined with the original second degree felony murder charge. However, the State contended, and the trial courts agreed, that the "ends of justice" exception to the mandatory joinder rule applies because the decision in Andress was an extraordinary, unforeseeable event. Each defendant was again convicted and then appealed. The Court of Appeals affirmed the defendants' convictions and the trial courts' determinations that the "ends of justice" exception to the mandatory joinder rule applies.

¶ 3 Additional facts are set forth below.

ANALYSIS

¶ 4 1. Mandatory joinder rule and applicability of the "ends of justice" exception.

¶ 5 The primary issue in these cases is whether the Court of Appeals erred in upholding the trial courts' decisions that the "ends of justice" exception to the mandatory joinder rule applies. Under the mandatory joinder rule, CrR 4.3.1(b)(3), two or more offenses must be joined if they are related, subject to exceptions identified in the rule. "Related offenses" are two or more offenses within the jurisdiction and venue of the same court that are based on the same conduct. CrR 4.3.1(b)(1). "Same conduct" is conduct involving a single criminal incident or episode. State v. Watson, 146 Wash.2d 947, 957, 51 P.3d 66 (2002); State v. Lee, 132 Wash.2d 498, 503, 939 P.2d 1223 (1997). CrR 4.3.1(b)(3) states in part:

A defendant who has been tried for one offense may thereafter move to dismiss a charge for a related offense. ... The motion to dismiss must be made prior to the second trial, and shall be granted unless the court determines that because the prosecuting attorney was unaware of the facts constituting the related offense, or did not have sufficient evidence to warrant trying this offense at the time of the first trial, or for some other reason, the ends of justice would be defeated if the motion were granted.

(Emphasis added.) The rule does not prohibit charging lesser offenses of the original charged offense, because lesser offenses do not have to be charged at all. State v. Anderson, 96 Wash.2d 739, 744, 638 P.2d 1205 (1982) (Anderson II); RCW 10.61.006. The mandatory joinder rule is procedural; it does not implicate double jeopardy. State v. Dallas, 126 Wash.2d 324, 330-31, 892 P.2d 1082 (1995).

¶ 6 The mandatory joinder rule is intended as a limit on the prosecutor, and its purposes are to protect defendants from (a) successive prosecutions that can act as a hedge against the risk of an unsympathetic jury at the first trial, (b) a "hold" on the defendant after the defendant has been sentenced, or (c) harassment of the defendant through multiple trials. Id. at 331-32, 892 P.2d 1082; see also Lee, 132 Wash.2d at 503, 939 P.2d 1223 (citing State v. Harris, 130 Wash.2d 35, 43-44, 921 P.2d 1052 (1996)); State v. Russell, 101 Wash.2d 349, 353 n. 1, 678 P.2d 332 (1984); State v. Ramos, 124 Wash.App. 334, 340 n. 21, 101 P.3d 872 (2004) (Ramos I); ABA Standards for Criminal Justice, Joinder and Severance 13-2.3 (2d ed. 1980 & Supp.1986). The rule "does not differentiate based upon the prosecutor's intent. Whether the prosecutor intends to harass or is simply negligent ... [the rule] applies to require a dismissal of the second prosecution." Dallas, 126 Wash.2d at 332, 892 P.2d 1082.

¶ 7 The State appropriately concedes in each of the consolidated cases that the new charges filed against the defendants are related charges within the meaning of the mandatory joinder rule. See Lee, 132 Wash.2d at 503, 939 P.2d 1223. The only question is whether the ends of justice exception applies.

¶ 8 We employ an analysis of the ends of justice exception to the mandatory joinder rule that is analogous to the analysis that is applied under CR 60(b)(11). Dallas, 126 Wash.2d at 333, 892 P.2d 1082 (citing State v. Carter, 56 Wash.App. 217, 223, 783 P.2d 589 (1989)). CR 60(b)(11) permits vacation of a judgment on the ground of "other reason[s] justifying relief," and requires extraordinary circumstances. Thus, for the ends of justice exception to mandatory joinder to apply, there must be "extraordinary circumstances." Dallas, 126 Wash.2d at 333, 892 P.2d 1082. In addition, "[t]he circumstances must involve reasons which are extraneous to the action of the court or go to the regularity of its proceedings." Id. The exception cannot be invoked in the case of a prosecutor's ordinary mistake or negligence in charging.

¶ 9 Cases decided under CR 60(b)(11) show that "extraordinary circumstances" are unusual circumstances that are not within the control of the party. For example, extraordinary circumstances were found under the civil rule when a separation agreement that gave a disparate share of property to the former husband in exchange for the wife not being required to pay child support was an unenforceable attempt to avoid child support and constituted an extraordinary circumstance permitting vacation of the agreement. In re Marriage of Hammack, 114 Wash.App. 805, 60 P.3d 663 (2003). In another case, the fact that the plaintiff's attorney suffered from severe depression was a sufficient ground under the rule to relieve the plaintiff from an order of dismissal based on the attorney's failure to comply with a discovery order, when the failure was not due to incompetence or deliberate inattentiveness, the plaintiff diligently provided the discovery information to the attorney, and the irregularities were outside the control of the plaintiff, the defendant and the court. Barr v. MacGugan, 119 Wash.App. 43, 78 P.3d 660 (2003).

¶ 10 In In re Adoption of Henderson, 97 Wash.2d 356, 644 P.2d 1178 (1982), changes made in a governing statute provided that adoption decrees should be final from the date of entry. The court held that an adoptive father's adoption decree was invalid only insofar as it had been made interlocutory. Further, under CR 60(b)(11) vacation of the decree of adoption was proper if on remand the trial court determined that this would be in the best interests of the children, where the interlocutory provision had been included by mistake and the adoptive father had been misadvised about his rights.

¶ 11 In the consolidated cases now before the court, the State contends that the circumstances presented by the Andress decision are truly extraordinary and justify application of the ends of justice exception.¹ We agree.

¶ 12 The circumstances of Andress and its effect on numerous existing second degree felony murder convictions are out of the ordinary, not within the control of the State, and extraneous to the action of the court. The extraordinary nature of these circumstances is shown by the fact that in several of these cases the defendants' convictions occurred after they were charged only with second degree felony murder based on assault, an offense that, as became clear under Andress, was a nonexistent crime. See Hinton, 152 Wash.2d at 857, 100 P.3d 801. Thus, these defendants would never have any viable homicide charges brought against them, as a legal matter, for the deaths they caused if the mandatory joinder rule were to apply and bar any additional homicide charges. The decision in Andress and its impact on all second degree felony murder convictions based on assault entered over more than 25 years constitute "extraordinary circumstances" for purposes of CrR 4.3.1(b)(3).

¶ 13 In addition, Andress and its effect on second degree felony murder convictions were not within the control of the prosecutors and were extraneous to the actions of the trial courts.

¶ 14 We...