State v. Linton

• Decision Date: 13 April 2006
• Docket Number: No. 75784-4.,75784-4.
• Citation: 156 Wn.2d 777,132 P.3d 127
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. Roy Bernard LINTON, Respondent.

132 P.3d 127

156 Wn.2d 777

STATE of Washington, Petitioner, v. Roy Bernard LINTON, Respondent.

No. 75784-4.

Supreme Court of Washington, En Banc.

Argued May 26, 2005.

Decided April 13, 2006.

Seth Aaron Fine, Snohomish County Prosecutor's Office, Everett, for Petitioner/Appellant.

Dana M. Lind, Nielsen Broman & Koch PLLC, Seattle, for Appellee/Respondent.

Lenell Rae Nussbaum, Seattle, for Amicus Curiae Washington Association of Criminal Defense Lawyers.

FAIRHURST, J.

¶ 1 Roy Bernard Linton was charged with first degree assault. A jury convicted him of second degree assault based on an instruction directing it to consider the lesser included offense of second degree assault if it acquitted Linton of first degree assault or if it was unable to agree on that charge. At the prosecutor's request, the trial judge asked the jury whether it was able to reach a verdict as to first degree assault and whether it would be able to do so with additional time. After the jury indicated that it would not be able to come to a unanimous verdict, the trial court declared the jury hopelessly deadlocked on first degree assault. The State sought to retry the defendant for first degree assault, but the trial court denied the State's motion on double jeopardy grounds. The Court of Appeals affirmed, reasoning that because the defendant was convicted of second degree assault, he was implicitly acquitted of first degree assault. We find that the trial court improperly inquired into the jury's reasoning on first degree assault. Had the judge not done so, there would have been an implied acquittal on first degree assault, but not for the reasons put forth by the Court of Appeals. We therefore affirm the Court of Appeals based on different reasoning.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 2 Linton was charged with first degree robbery and first degree assault. The trial court instructed the jury that if they found Linton not guilty of first degree assault or, if after full and careful consideration they were not able to agree on disposition of that crime, then the jury should consider the lesser included crime of second degree assault.¹ During deliberations, the jury submitted a note to the trial court stating that it was 11 to 1 for a guilty verdict on first degree assault and asking whether it had to submit a guilty verdict for second degree assault or whether it was a hung jury for first degree assault. The court directed the jury to reread the instructions, particularly instruction 23. Instruction 23 lays out how the jury should proceed. With respect to the assault charges, it provides:

You will next consider the crime of Assault in the First Degree as charged in Count II. If you unanimously agree on a verdict, you must fill in the blank provided in verdict form B 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 B.

If you find the defendant guilty on verdict form B, do not use verdict form C. If you find the defendant not guilty of the crime of Assault in the First Degree, or if after full and careful consideration of the evidence you cannot agree on that crime, you will consider the lesser crime of Assault in the Second Degree. If you unanimously agree on a verdict, you must fill in the blank provided in verdict form C 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 C.

Clerk's Papers (CP) at 93.

¶ 3 The jury found Linton not guilty of robbery. The jury entered the following verdict on second degree assault on verdict form C:

We, the jury, having found the defendant, Roy B. Linton, not guilty of the crime of Assault in the First Degree as charged in Count II, or being unable to unanimously agree as to that charge, find the defendant guilty of the lesser included crime of Assault in the Second Degree.

CP at 63; Verbatim Report of Proceedings (VRP) at 429. The jury left blank verdict form B ¶ 4 The judge directed the clerk to ask each juror whether the verdict she read constituted his or her verdict in order to assure the court that the verdict was unanimous. VRP at 429. Each juror responded that the statement represented his or her verdict, and the judge accepted and filed the verdict. VRP at 429-30. The State then requested the trial judge to ask each juror whether they were able to reach a verdict on first degree assault and whether they would be able to given more time. VRP at 430-31. Defense counsel objected on the basis that the jury had reached a verdict. VRP at 431. Yet the judge asked the presiding juror, based on the comments and question the jury sent out, whether the jury would be able to arrive at a unanimous verdict on first degree assault if given more time. VRP at 431. The presiding juror responded that they believed that based on the evidence, the jury would not be able to come to a unanimous verdict with additional time. VRP at 431.

¶ 5 The trial judge entered a finding that the jury was hopelessly deadlocked on first degree assault, declared a mistrial as to that charge, and discharged the jury with Linton's consent. The State then filed a motion for retrial on first degree assault. The trial court denied the State's motion on double jeopardy grounds and imposed an exceptional sentence for the second degree assault conviction.²

¶ 6 The State appealed the trial court's denial of its motion for retrial on first degree assault. The Court of Appeals affirmed in a published opinion. State v. Linton, 122 Wash.App. 73, 93 P.3d 183 (2004). We granted the State's subsequent petition for review. State v. Linton, 153 Wash.2d 1017, 108 P.3d 1229 (2005).

II. ISSUE

¶ 7 Was there an implied acquittal here barring retrial on first degree assault on double jeopardy grounds?

III. ANALYSIS

¶ 8 The United States Constitution states that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. CONST. amend. V. The Washington Constitution provides that no person shall "be twice put in jeopardy for the same offense." WASH. CONST. art. I, § 9. "The federal and state [double jeopardy] provisions afford the same protections and are `identical in thought, substance, and purpose.'"³ 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)).

¶ 9 The double jeopardy doctrine protects a criminal defendant from being (1) prosecuted a second time for the same offense after acquittal, (2) prosecuted a second time for the same offense after conviction, and (3) punished multiple times for the same offense. State v. Graham, 153 Wash.2d 400, 404, 103 P.3d 1238 (2005); see also Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds by, Alabama v. Smith, 490 U.S. 794 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). But, the protection against double jeopardy attaches only when "some event, such as an acquittal, . . . terminates the original jeopardy." Richardson v. United States, 468 U.S. 317, 325, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984).

¶ 10 The Court of Appeals here held that the jury's "conviction on second degree assault operated as an acquittal on first degree assault and thus terminated jeopardy as to first degree assault" such that retrial on first degree assault would violate Linton's right against double jeopardy. Linton, 122 Wash. App. at 80, 93 P.3d 183. The State argues that because the trial court found that the jury was hopelessly deadlocked on first degree assault, there was no implied acquittal and Linton can be retried on that charge under the hung jury rule. Linton asserts that double jeopardy protections one and two apply here—that the conviction on second degree assault was an implied acquittal of first degree assault, barring retrial for first degree assault, and that conviction of second degree assault bars retrial for first degree assault, the same offense for double jeopardy purposes. We review questions of law de novo. Graham, 153 Wash.2d at 404, 103 P.3d 1238.

¶ 11 Acquittal of an offense terminates jeopardy and prohibits the State from trying the defendant a second time for the same offense. The United States Supreme Court has held that where a jury considers multiple offenses and renders a guilty verdict as to some but is silent on others, and the record does not show the reason for the discharge of the jury nor that the defendant consented to its discharge, the verdict is the equivalent of an acquittal for those offenses on which the jury was silent. Green v. United States, 355 U.S. 184, 191, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); see also Price v. Georgia, 398 U.S. 323, 328-29, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). This court also has adopted the implied acquittal doctrine. In Schoel, a jury was given options of finding a defendant guilty of first degree murder, second degree murder, manslaughter, or finding the defendant not guilty of any such crime. 54 Wash.2d at 394, 341 P.2d 481. Where the jury found the defendant guilty of second degree murder but left the other verdict forms blank, this court held that the jury had implicitly acquitted the defendant of first degree murder. Id; see also State v. Anderson, 96 Wash.2d 739, 742, 638 P.2d 1205 (1982).

¶ 12 However, numerous courts have distinguished between the situation where a jury convicts on one or more offenses but is silent as to others, and the situation where a jury is explicitly deadlocked on an offense, reasoning that we cannot infer an acquittal where a jury is hung. The United States Supreme Court explicitly distinguished between implicit acquittal and a hung jury in Selvester v. United States, 170 U.S. 262, 269, 18 S.Ct. 580, 42 L.Ed. 1029 (1898). The Court stated:

...