State v. Wright

• Decision Date: 30 January 2006
• Docket Number: No. 55745-9-I.,55745-9-I.
• Citation: 131 Wn. App. 474,127 P.3d 742
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Oliver WRIGHT, Appellant.

127 P.3d 742

131 Wn. App. 474

STATE of Washington, Respondent, v. Oliver WRIGHT, Appellant.

No. 55745-9-I.

Court of Appeals of Washington, Division 1.

January 30, 2006.

Andrea Vitalich, King County Prosector's Office, Seattle, WA, for Appellant.

Jason Saunders, Washington Appellate Project, Seattle, WA, for Respondent.

BECKER, J.

¶ 1 The State seeks to retry, on the charge of second degree intentional murder, a defendant whose felony murder conviction was vacated under In Re Andress¹ because it was for a then nonexistent crime. The charge of intentional murder was left undecided in the first trial because neither the State nor the defendant asked to have it submitted in the instructions to the jury. Because the defendant has not been acquitted of the murder, and he has obtained a reversal of his first conviction for a reason other than insufficient evidence, he remains in the same jeopardy that attached during the first trial. The order dismissing the second prosecution on double jeopardy grounds is reversed.

FACTS

¶ 2 A man was shot dead in the street in Seattle in April 1993 in the course of an argument associated with a drug transaction. The State identified Oliver Wright as the shooter, and charged him with a single count of second degree murder. The information also charged Wright with committing three counts of assault and robbery against different victims three days earlier. The information alleged the count of murder by alternative means: felony murder predicated upon second-degree assault, and intentional murder. The case went to trial later that year. At the end of the trial, both parties submitted felony murder instructions. No one proposed an instruction on intentional murder. On the charge of murder, the court instructed the jury only on felony murder. The jury found Wright guilty of felony murder, and guilty on the assault and robbery charges as well. He went to prison on a 534-month standard range sentence. His conviction was affirmed on direct appeal.

¶ 3 Some years later, the Washington Supreme Court interpreted the former felony murder statute, RCW 9A.32.050, and decided that the Legislature did not intend for assault to serve as a predicate felony for second degree felony murder. In re Personal Restraint of Andress, 147 Wash.2d 602, 56 P.3d 981 (2002). Along with others situated similarly to the petitioner in Andress, Wright petitioned for relief from his conviction. The Supreme Court held that the petitioners were entitled to relief because they had been convicted of a nonexistent crime. In re Personal Restraint of Hinton, 152 Wash.2d 853, 100 P.3d 801 (2004). The Court vacated the convictions and remanded for further proceedings.

¶ 4 The State then renewed its prosecution of Wright for the 1993 homicide by amending the information so that the murder count alleged only second degree intentional murder. Wright moved to dismiss the charge as barred by double jeopardy. The trial court granted that motion. The State appeals.

ANALYSIS

¶ 5 "No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb". U.S. Const. amend. V.²

¶ 6 The guarantee of the double jeopardy clause consists of three separate constitutional 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, 23 L.Ed.2d 656 (1969). There is no issue of multiple punishments in this case. The issue is successive prosecution.

¶ 7 The law "attaches particular significance to an acquittal." United States v. Scott, 437 U.S. 82, 91, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978). A verdict of acquittal ends a defendant's jeopardy for that offense and bars reprosecution for the same offense even if it is not reduced to judgment and even if it appears to be erroneous. Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); Scott, 437 U.S. at 91, 98 S.Ct. 2187.

¶ 8 A conviction, on the other hand, does not necessarily act as a bar to a second prosecution for the same offense, for "it is quite clear that a defendant, who procures a judgment against him upon an indictment to be set aside, may be tried anew upon the same indictment, or upon another indictment, for the same offence of which he had been convicted." United States v. Ball, 163 U.S. 662, 672, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). The Ball case "effectively formulated a concept of continuing jeopardy that has application where criminal proceedings against an accused have not run their full course." Price v. Georgia, 398 U.S. 323, 326, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). "When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished." Burks v. United States, 437 U.S. 1, 15, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). The practice of retrial after reversal "serves defendants' rights as well as society's interest" because appellate courts would be less zealous in rooting out error "if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution." United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964). The rationale for retrial "rests ultimately upon the premise that the original conviction has, at the defendant's behest, been wholly nullified and the slate wiped clean." North Carolina v. Pearce, 395 U.S. at 721, 89 S.Ct. 2072.

¶ 9 There can be no retrial, however, when the reason the appellate court reverses a conviction is insufficiency of the evidence. An appellate reversal for insufficient evidence is deemed to be an acquittal with the same effect as a verdict of acquittal because it "means that the government's case was so lacking that it should not have even been submitted to the jury." Burks, 437 U.S. at 16, 98 S.Ct. 2141.

¶ 10 Wright contends that the appellate reversal of his murder conviction was equivalent to an acquittal. First, he argues that felony murder convictions predicated on assault under the former statute are, according to Andress, based on legally insufficient evidence. This argument lacks merit. To determine whether insufficiency of the evidence was the reason why Wright's conviction was set aside, we look to the rationale of the reversing court. See Parker v. Norris, 64 F.3d 1178, 1182 (8th Cir.1995). Nowhere in Andress did the Supreme Court adopt or imply a rationale of evidentiary insufficiency. Rather, the Court engaged in statutory construction and concluded that Andress had been convicted of a nonexistent crime. See Hinton, 152 Wash.2d at 857, 100 P.3d 801. The problem of conviction for a nonexistent crime is not a failure of proof. Montana v. Hall, 481 U.S. 400, 107 S.Ct. 1825, 95 L.Ed.2d 354 (1987) (defendant was erroneously convicted of incest under a statute that did not go into effect until after the date of the crime; reversal did not bar retrial on a charge of sexual assault under a more general statute).

¶ 11 Wright next argues that the 1993 jury, by finding him guilty of only felony murder, implicitly acquitted him on the alternative charge of intentional murder. In Green, on which Wright principally relies, the government tried the defendant on charges of arson and murder. On the murder count, the instructions gave the jury the choice of first or second degree murder. The jury found the defendant guilty of second degree murder. Their verdict was silent on the charge of first degree murder. The second degree murder conviction was reversed on appeal as unsupported by the evidence. The government reprosecuted Green for first degree murder and obtained a conviction. Green asserted former jeopardy, based not on his prior conviction, but on a theory of prior acquittal. He argued that the original jury's "refusal" to convict him of first degree murder was the same as an acquittal. See Green, 355 U.S. at 190 n. 11, 78 S.Ct. 221. The Supreme Court, reversing on double jeopardy grounds, agreed that the first jury's verdict was an "implicit acquittal" on the charge of first degree murder.

Green was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gantlet 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.

Green, 355 U.S. at 190, 78 S.Ct. 221.

¶ 12 It was critical to the rationale in Green that the first jury "was given a full opportunity to return a verdict" on the charge of first degree murder. Green, 355 U.S. at 191, 78 S.Ct. 221; Price v. Georgia, 398 U.S. at 329, 90 S.Ct. 1757. A Washington case in the vein of Green is State v. Hescock, 98 Wash.App. 600, 989 P.2d 1251 (1999). After a bench trial, the court found a juvenile guilty of only one out of two charged alternative means of committing forgery. This court, after reversing that conviction for insufficient evidence, held that double jeopardy barred retrial on the other means as well because, as in Green, the trier of fact had not found the defendant guilty on that charge despite having a full opportunity to do so. Hescock, 98 Wash.App. at 611, 989 P.2d 1251.

¶ 13 Wright's case differs materially from Green and Hescock in that the jury in Wright's trial did not have a full opportunity to find him guilty of intentional murder. The charge did not appear in the instructions. It simply dropped from the case. It cannot be said that the jury refused to convict him of intentional murder. That choice was not available. We therefore conclude the 1993 verdict was...