State v. Linton, 52195-1-I.
| Decision Date | 28 June 2004 |
| Docket Number | No. 52195-1-I.,52195-1-I. |
| Parties | STATE of Washington, Appellant, v. Roy Bernard LINTON, Respondent. |
| Court | Washington Court of Appeals |
Seth Aaron Fine, Attorney at Law, Everett, WA, for Respondent.
Dana M. Nelson, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.
Roy Linton was charged with first degree assault. The jury was unable to agree that he had committed first degree assault and rendered a verdict finding Linton guilty of second degree assault. The trial court denied a retrial on the first degree assault charge on the grounds that it would expose Linton to double jeopardy. We affirm.
Linton was charged with one count of first degree assault and one count of robbery following his assault of Clancy Rueb.1 The trial judge instructed the jury on first degree assault and on second degree assault as a lesser included offense.
On Friday, February 21, 2003, after approximately 3 hours and 40 minutes of deliberations, the jury submitted to the trial court the following query:
We have come to a vote of 11 to 1 for 1st degree assault. According to rule # 14, do we have to submit a guilty verdict to 2nd degree assault or are we a hung jury on 1st degree assault? We are unanimous that there was an assault. Some will not agree to assault # 2 v. # 1.
On Monday, February 24, the trial court instructed the jury to re-read Jury Instruction 23, which stated in relevant part:
Approximately one hour later, the jury returned a verdict finding Linton guilty of second degree assault.
The trial court dismissed the jury with Linton's consent. Linton was sentenced to an exceptional sentence on the second degree assault verdict.2 The State filed a motion for a retrial on grounds that the jury had deadlocked on the first degree assault charge. Following a hearing on the issue of a retrial, the trial court denied the State's request for a retrial. The State appeals.
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 double jeopardy clause of the Washington Constitution, article I, section 9, states that "[n]o person shall [be subject for the same offense] to be twice put in jeopardy for the same offense."
A comparison of the provisions found in the United States constitution and our state constitution with regard to double jeopardy, reveals that the two are identical in thought, substance, and purpose. In a series of cases commencing with State v. Vance, 29 Wash. 435, 70 P. 34 (1902), this court has adhered to the rule that where the language of the state constitution is similar to that of the Federal constitution, the language of the state constitutional provision should receive the same definition and interpretation as that which has been given to the like provision in the Federal constitution by the United States [S]upreme [C]ourt.
State v. Schoel, 54 Wash.2d 388, 391, 341 P.2d 481 (1959). Thus, the double jeopardy clause of the state constitution, like its counterpart in the United States Constitution, offers several, related protections:
North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds in 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, 128, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) (quoting Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978) (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 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, 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).
State v. Kirk, 64 Wash.App. 788, 790-91, 828 P.2d 1128 (1992).
The State maintains that because the jury deadlocked on Linton's first degree assault charge, they are entitled to retry him on that charge. We disagree.
Generally, "constitutional double jeopardy provisions do not bar retrial following a mistrial granted because a jury was unable to reach a verdict." State v. Ahluwalia, 143 Wash.2d 527, 538, 22 P.3d 1254 (2001) (citing Arizona, 434 U.S. at 505, 98 S.Ct. 824); Richardson, 468 U.S. at 324, 104 S.Ct. 3081. However, there are exceptions to this rule.
In State v. Anderson, 96 Wash.2d 739, 638 P.2d 1205, cert. denied, 459 U.S. 842, 103 S.Ct. 93, 74 L.Ed.2d 85 (1982), our Supreme Court held that where a conviction is reversed and remanded for a new trial, provided that the reversal was not based upon insufficiency of the evidence, "the defendant may be retried for the convicted offense and any lesser included offenses." Anderson, 96 Wash.2d at 742, 638 P.2d 1205. Upon retrial, however, the double jeopardy provisions bar retrial of a higher degree offense because the defendant "has implicitly been acquitted of the higher degrees of the crime." Anderson, 96 Wash.2d at 742, 638 P.2d 1205 (citing Schoel, 54 Wash.2d 388, 341 P.2d 481; State v. Murphy, 13 Wash. 229, 43 P. 44 (1895)); see also State v. Brown, 127 Wash.2d 749, 903 P.2d 459 (1995)
(citing State v. Markle, 118 Wash.2d 424, 441, 823 P.2d 1101 (1992); Green v. United States, 355 U.S. 184, 191, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957)).3
The State asserts that Brown, and the cases upon which Brown relies, are not controlling because none of those cases involved a hung jury.4 As established in Anderson, however, the determinative question to ask in deciding whether jeopardy has been terminated is whether a defendant has been acquitted of a charge.
In State v. Labanowski, 117 Wash.2d 405, 816 P.2d 26 (1991), our Supreme Court made explicit that in Washington, even if a jury is not unanimous on a greater offense, it may render a verdict on a lesser degree offense. Labanowski, 117 Wash.2d at 423, 816 P.2d 26. Labanowski was a consolidated case in which defendants challenged the trial courts' jury instructions on charged offenses and lesser included offenses. Labanowski, 117 Wash.2d 405, 816 P.2d 26. At issue was whether a jury could render a verdict on a lesser included offense after being unable to reach unanimity on the charged, greater included offense. Labanowski, 117 Wash.2d at 415, 816 P.2d 26.5 The Court concluded that "unable to agree" instructions "correctly state the law in Washington." Labanowski, 117 Wash.2d at 423, 816 P.2d 26. An "unable to agree" instruction "allows a jury to render a verdict on a lesser offense either if the jurors find the defendant not guilty of the greater offense or, if after full and careful consideration of the evidence, the jurors cannot agree on a verdict for the greater offense." Labanowski, 117 Wash.2d at 424, 816 P.2d 26. Thus, in Washington, a jury may render a verdict on a lesser offense even "if it is unable to reach agreement on the greater offense."6 Labanowski, 117 Wash.2d at 423, 816 P.2d 26.
In Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), the Supreme Court established that if two offenses are the same under the Blockburger test for purposes of barring consecutive sentences at trial, they necessarily will be the same for purposes of barring successive prosecutions. Brown, 432 U.S. 161,97 S.Ct. 2221. Brown was convicted of felony auto theft in one county and misdemeanor joyriding on a different day in a different county. Although convicted on different dates and in different counties, the Court found the double convictions to be double jeopardy, explaining:
816 P.2d 26. This is in accord with Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970), wherein the United States Supreme Court observed:
[T]his Court has consistently refused to rule that jeopardy for an...
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