State v. Kirk

• Decision Date: 02 April 1992
• Docket Number: No. 13129-3-II,13129-3-II
• Citation: 828 P.2d 1128,64 Wn.App. 788
• Parties: The STATE of Washington, Respondent, v. William KIRK, Appellant.
• Court: Washington Court of Appeals

Page 788

64 Wn.App. 788

828 P.2d 1128

The STATE of Washington, Respondent, v. William KIRK, Appellant.

No. 13129-3-II.

Court of Appeals of Washington,

Division 2.

April 2, 1992.

Jeffrey Cox, and Shiers, Chrey, Hauge, Cox & Caulkins, Port Orchard, for appellant.

C. Danny Clem, Pros. Atty., and Irene K. Asai, Deputy Pros. Atty., Port Orchard, for respondent.

PETRICH, Chief Judge.

We accepted discretionary review of the trial court's order directing the retrial of a charge of first degree statutory rape against William Kirk. He contends that the double jeopardy clauses of the state and federal constitutions bar a retrial.

The issue presented is whether the trial court's act of discharging the jury without Kirk's consent, after the jury had entered a guilty verdict on a lesser included offense, prosecution of which was barred by the statute of limitations, ¹ without having made a determination of guilt or innocence of the greater offense, terminated jeopardy on the greater offense, thus precluding its retrial. We conclude that without a showing that the discharge of the jury on the greater offense was necessary in the interest of the proper administration of justice, such a discharge terminates jeopardy and bars a retrial on the greater charge.

William Kirk went on trial for first degree statutory rape. He requested a jury instruction on the lesser-included offense of communication with a minor for immoral purposes. The State excepted to the instruction on the ground that the statute of limitations for that crime had expired by the time the State filed the information. The court gave the instruction, believing that the statute of limitation for the greater offense controlled as to the lesser-included crime. ² The jury found Kirk guilty of the lesser-included communication charge, but did not return a verdict on statutory rape. The court then polled the jury and asked each of them, "Was the jury unable to agree as to the allegation of first degree statutory rape?" All 12 jurors said, "Yes." The court then discharged the jury.

The State then moved to reset trial on the rape charge. Initially, the trial court denied the motion. After Kirk moved to arrest judgment on the communication charge on jurisdictional grounds, alleging that the statute of limitations had run, the court, on reconsideration, granted the State's motion to reset the trial and granted Kirk's motion to arrest judgment on the lesser-included crime.

The Fifth Amendment to the United States Constitution states: "... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb ..." The Washington Constitution, Art. I, § 9, declares: "No person shall be ... twice put in jeopardy for the same offense."

Because of the similarity of these jeopardy provisions, the language of the state constitution receives the same interpretation as that which the United States Supreme Court gives to the jeopardy provision of the federal constitution. State v. Schoel, 54 Wash.2d 388, 391, 341 P.2d 481 (1959) (double jeopardy clauses are identical in thought, substance, and purpose); State v. Netling, 46 Wash.App. 461, 463, 731 P.2d 11, review denied, 108 Wash.2d 1011 (1987).

The Double Jeopardy Clause provides four related protections: "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). It also protects the defendant's "valued right to have his trial completed by a particular tribunal." United States v. DiFrancesco, 449 U.S. 117, 129, 101 S.Ct. 426, 433, 66 L.Ed.2d 328 (1980) (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949)). "[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, 3086, 82 L.Ed.2d 242 (1984). Not only is retrial precluded under the double jeopardy provision of the Fifth Amendment in an appropriate case, but the government's appeal of a judgment of acquittal is similarly barred. United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977). Under this same principle, a trial court cannot set a retrial of a case that is barred under double jeopardy principles.

In Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), the defendant was tried on two counts, one of first degree murder and one of second degree murder. The jury convicted Green of second degree but was silent on the first degree murder charge. Green appealed the second degree conviction and obtained a reversal and remand for new trial. The Supreme Court held that once the trial court dismissed the jury before it returned a verdict on the first degree murder charge and without Green's consent, the State could not retry Green on that charge. The Court explained:

Green was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gauntlet once on that charge and the jury refused to convict him. When given the choice between finding him guilty of either first or second degree murder it chose the latter. In this situation the great majority of cases in this country have regarded the jury's verdict as an implicit acquittal on the charge of first degree murder. But the result in this case need not rest alone on the assumption, which we believe legitimate, that the jury for one reason or another acquitted Green of murder in the first degree. For here, the jury was dismissed without returning any express verdict on that charge and without Green's consent. Yet it 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. Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974.

Green, 355 U.S. at 190-91, 78 S.Ct. at 225.

The State contends that Green does not apply because, while the Green jury was silent on the greater offense, here the jury could not make a unanimous finding of guilt or innocence on the greater offense. Thus, the State contends, there was a hung jury on the greater offense.

The common rule is that a finding of guilt on a lesser-included offense is an acquittal on the greater charge. State v. Schoel, 54 Wash.2d at 394, 341 P.2d 481. Nonetheless, as the State points out, we cannot imply a verdict of not guilty from the record before us. ³ The record discloses that the jurors were unable to agree on the greater offense.

The discharge of a jury without the defendant's consent has the same effect as an acquittal unless the discharge was necessary in the proper administration of justice. State v. Jones, 97 Wash.2d 159, 162, 641 P.2d 708 (1982) (quoting State v. Connors, 59 Wash.2d 879, 883, 371 P.2d 541 (1962)). "One situation where the proper administration of justice requires the discharge of a jury is where that jury is unable to agree on a verdict." Jones, 97 Wash.2d at 163, 641 P.2d 708. While the decision to discharge a jury is within the broad discretion of the trial court, there must be "extraordinary and striking" circumstances to justify the discharge. Jones, at 163, 641 P.2d 708 (quoting State v. Bishop, 6 Wash.App. 146, 150, 491 P.2d 1359 (1971), review denied, 80 Wash.2d 1006 (1972)). The jurors' acknowledgment of hopeless deadlock is an "extraordinary and striking" circumstance which would justify the trial court in discharging the jury. Jones, 97 Wash.2d at 164, 641 P.2d 708. However, even in face of such an acknowledgement, a trial court should consider the length of the jury deliberations in light of the length of the trial and the complexity of the issues. Jones, at 164, 641 P.2d 708 (citing State v. Boogaard, 90 Wash.2d 733, 739, 585 P.2d 789 (1978)). And the court should make appropriate inquiries about the jury's deliberations. Jones, 97 Wash.2d at 164, 641 P.2d 708.

In Jones, the Court found that there were no "extraordinary and striking" circumstances justifying a mistrial when, after a four day trial, the jurors did not indicate that they were having problems, the deliberations did not reach "extraordinary and striking" lengths, the court's inquiries were insufficient to establish that the jury was genuinely deadlocked, and the court failed to explore any alternatives to discharging the jury. Jones, at 165-66, 641 P.2d 708.

Here, the mere acknowledgment that jurors were unable to agree on Kirk's innocence or guilt is not enough. While the trial began June 8 and ended June 13, we cannot tell from the record how long the jury deliberated. We do know, however, that the jury reached a verdict on the lesser offense and was discharged the same day the charges were submitted. In Jones, there was a much stronger showing that the jury was unable to reach a verdict than in the case before us, yet the Court held that a declaration of mistrial was improper and that the Double Jeopardy Clause precluded a retrial. Absent a showing of "extraordinary and striking" circumstances, the trial court's act of discharging the jury terminated Kirk's jeopardy.

We remand with directions to vacate the order resetting trial on the first degree statutory rape charge.

MORGAN, J., concurs.

RE...