State v. Wright

Decision Date26 March 2009
Docket NumberNo. 78465-5.,No. 78788-3.,78465-5.,78788-3.
PartiesSTATE of Washington, Respondent, v. Oliver Menard WRIGHT, Petitioner. State of Washington, Respondent, v. Cinque Richard Garrett, Defendant, Dennis Lamar Bryant, Petitioner.
CourtWashington Supreme Court

Jason Brett Saunders, Gordon & Saunders PLLC, Thomas Michael Kummerow, Washington Appellate Project, David Bruce Koch, Christopher Gibson, Nielsen Broman & Koch PLLC, Seattle, WA, for Petitioners.

Andrea Ruth Vitalich, Jeffrey C. Dernbach, King County Prosecutor's Office, Seattle, WA, for Respondent.

MADSEN, J.

¶ 1 In separate proceedings, the State tried Oliver Wright and Dennis Bryant (defendants) for second degree murder, charged as a single count under the statutory alternatives of intentional murder and felony murder based on assault. The jury returned a general verdict of guilt after receiving instructions only on the felony murder alternative. Following In re Personal Restraint of Andress, 147 Wash.2d 602, 56 P.3d 981 (2002), and In re Personal Restraint of Hinton, 152 Wash.2d 853, 100 P.3d 801 (2004), the Court of Appeals vacated the convictions. The defendants contend the double jeopardy clause prevents the State from retrying them for second degree intentional murder.

¶ 2 We find nothing in the double jeopardy clause that precludes the State from continuing its prosecution of the defendants for second degree murder under the intentional murder alternative. Their second degree felony murder convictions were vacated due to trial error, not insufficient evidence. The defendants were not impliedly acquitted of second degree intentional murder because their juries had no opportunity to consider their factual innocence of that charge. Finally, we reject the defendants' contention that jeopardy terminated when the jury was discharged without returning an express verdict on the intentional murder alternative. Applying well-established principles applicable to alternative means offenses, we hold the State's failure to submit a jury instruction on intentional murder has no effect on its ability to retry the defendants for that charge.

¶ 3 Because the defendants' convictions were reversed on grounds other than insufficient evidence, and because they have not been expressly or impliedly acquitted of intentional murder, they remain in the same jeopardy as attached at the first trial. Thus, we affirm the Court of Appeals' decisions remanding for retrial.

FACTS
Wright

¶ 4 On April 6, 1993, Oliver Wright killed Aisa Cameron during a drug transaction on a Seattle street. Wright and Cameron had been arguing. Wright put his arm around Cameron's neck, pulled him close, said "Don't you know I shot you?", and then shot him in the chest at point blank range. 1 Videotape Recorded Proceedings (VRP) at 209.

¶ 5 The State charged Wright with one count of second degree murder under RCW 9A.32.050(1)(a) (intentional murder) and .050(1)(b) (felony murder predicated on assault).1 Clerk's Papers (CP) (Wright) at 150.2 However, the State proposed jury instructions only on the felony murder alternative. CP (Wright) at 95-96.3

¶ 6 Following an off-the-record conference to go over the jury instructions, the court asked the parties whether they wished to enter any objections on the record. Wright did not take exception to the jury instructions. 3 VRP 716.

¶ 7 The jury returned a general verdict of guilt on the second degree murder charge.

Bryant

¶ 8 On August 6, 1994, Dennis Bryant shot Derek Burfect and Jacque Burns in a parking lot following the Seafair parade. Burns died as a result of his injuries. The State charged Bryant with one count of second degree murder under RCW 9A.32.050(1)(a) (intentional murder) and .050(1)(b) (felony murder predicated on assault), using language indistinguishable from that in Wright's case.4

¶ 9 As in Wright's case, the trial court instructed the jury only on the felony murder alternative, using the same pattern instructions. Clerk's Papers (Bryant) at 200, 213. Neither the prosecutor nor defense counsel took exception to the jury instructions. The jury returned a general verdict of guilt.

¶ 10 The defendants' second degree murder convictions were upheld on direct review. Following this court's decision in Hinton, however, the Court of Appeals granted the defendants' personal restraint petitions and vacated the convictions. In both cases, the State sought to retry the defendants for second degree murder, this time under the intentional murder alternative alone. The trial courts granted the defendants' motions to dismiss the charges on double jeopardy grounds. However, the trial courts ruled the State could retry Wright for first degree manslaughter and Bryant for first degree assault.

¶ 11 Instead, the State successfully moved for discretionary review of the trial courts' rulings at the Court of Appeals. The Court of Appeals stayed Bryant's case pending its decision in Wright's case. In State v. Wright, 131 Wash.App. 474, 127 P.3d 742 (2006), the Court of Appeals reversed the trial court and remanded for trial. The Court of Appeals then reversed the trial court in Bryant's case and remanded for further proceedings. State v. Garrett, noted at 132 Wash.App. 1056 (2006). This court consolidated Bryant's petition for review with Wright's and granted review. State v. Wright, 159 Wash.2d 1014, 155 P.3d 139 (2007).

ANALYSIS

¶ 12 The Fifth Amendment provides 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. Article I, section 9 of the Washington Constitution similarly provides, "No person shall be compelled in any criminal case to give evidence against himself, or be twice put in jeopardy for the same offense." These provisions are "`identical in thought, substance, and purpose.'" State v. Ervin, 158 Wash.2d 746, 752, 147 P.3d 567 (2006) (internal quotation marks omitted) (quoting In re Pers. Restraint of Davis, 142 Wash.2d 165, 171, 12 P.3d 603 (2000)). The double jeopardy clause protects individuals from three distinct governmental abuses: a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. State v. Gocken, 127 Wash.2d 95, 100, 896 P.2d 1267 (1995) (quoting 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)).

¶ 13 That a person may not be retried for the same offense following an acquittal is "the most fundamental rule in the history of double jeopardy jurisprudence." United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977). An acquittal is an absolute bar to retrial, regardless of how erroneous. Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978) (citing Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962)). An acquittal may be either express or implied by conviction of a lesser included offense. Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 308-09, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984). A reversal for insufficient evidence is deemed equivalent to an acquittal, for double jeopardy purposes, because it means "no rational factfinder could have voted to convict" on the evidence presented. Tibbs v. Florida, 457 U.S. 31, 40-41, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982) (characterizing the exception as "narrow").

¶ 14 However, 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 insufficient evidence because the defendant's appeal continues the initial jeopardy. State v. Corrado, 81 Wash.App. 640, 647-48, 915 P.2d 1121 (1996) (internal quotation marks omitted) (quoting Tibbs, 457 U.S. at 40, 102 S.Ct. 2211). The defendant may be retried for the same offense, on the original indictment or under a new indictment. Burks v. United States, 437 U.S. 1, 13, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Allowing retrial upon reversal of a conviction not only serves society's interest in ensuring the guilty are punished; it also protects a defendant's right to a fair trial. United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964) (noting appellate courts would be more reluctant to find reversible errors if defendants were thereby released from criminal liability for their offenses).

¶ 15 The double jeopardy clause also embraces a defendant's "`valued right'" to have the charges resolved by a particular tribunal. Arizona, 434 U.S. at 503, 98 S.Ct. 824 (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949)). When the jury is discharged before rendering an express verdict, and without the defendant's consent, retrial is constitutionally impermissible unless the trial terminated under circumstances amounting to "manifest necessity." See Gori v. United States, 367 U.S. 364, 368-69, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961).

¶ 16 In this case, the defendants claim they may not be retried for second degree intentional murder because the first trial ended in the functional equivalent of an acquittal. They advance three theories: (1) the reversal of their convictions resulted from insufficient evidence, (2) their juries impliedly acquitted them of intentional murder by convicting them of felony murder, and (3) jeopardy terminated when the trial ended without an express verdict on the intentional murder alternative.

¶ 17 The defendants first assert they cannot be retried for second degree murder because their convictions were reversed for insufficient evidence. They reason the State failed to prove an essential element of the charged offense, i.e. an appropriate predicate felony. Following Andress, second degree felony murder predicated...

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