Stow v. Murashige

• Citation: 389 F.3d 880
• Decision Date: 19 November 2004
• Docket Number: No. 03-17036.,03-17036.
• Parties: Steven Donald STOW, Petitioner-Appellee, v. Albert MURASHIGE, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

389 F.3d 880

Steven Donald STOW, Petitioner-Appellee, v. Albert MURASHIGE, Respondent-Appellant.

No. 03-17036.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 12, 2004.

Filed November 19, 2004.

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Davelynn M. Tengan and Simone C. Polak, Department of the Prosecuting Attorney, Maui, HI, for the respondent-appellant.

Peter C. Wolff, Jr., Federal Public Defender, Honolulu, HI, for the petitioner-appellee.

Appeal from the United States District Court for the District of Hawaii Susan Oki Mollway, District Judge, Presiding. D.C. No. CV-02-00766-SOM/KSC.

Before FERNANDEZ, PAEZ, and RAWLINSON, Circuit Judges.

PAEZ, Circuit Judge.

Steven Donald Stow's petition for habeas relief presents a novel factual situation concerning the application of the Double Jeopardy Clause of the Fifth Amendment. After being tried in Hawaii state court for attempted murder arising out of Stow's alleged separate machete attacks of two homeless men over disputes involving alcohol, the jury returned a verdict of guilty on the charge of attempted first degree murder. The jury also returned "Not Guilty" verdicts on the two counts of attempted second degree murder. The trial court entered judgment on the guilty verdict and sentenced Stow accordingly. Neither the court nor counsel questioned the propriety of the jury's not guilty verdicts on the charges of attempted second degree murder; however, the record does not reflect whether counsel or the court were aware that the jury had written "Not Guilty" on the verdict form next to those two counts before the court entered judgment.

On direct appeal, the Hawaii Supreme Court reversed the jury's judgment of conviction of attempted first degree murder. The court, however, held that the not guilty verdicts on the two counts of attempted murder did not, in substance, constitute acquittals and therefore the State could retry Stow for attempted second degree murder without subjecting him to double jeopardy. Following remand by the Hawaii Supreme Court, but before the retrial began, Stow, pursuant to 28 U.S.C. § 2254, sought federal habeas relief on the ground that a retrial on the charges of attempted second degree murder would violate his Fifth Amendment right against double jeopardy. The district court granted Stow's petition and the State appealed.

Preliminarily, we hold that Stow's habeas petition is properly considered under 28 U.S.C. § 2241, not § 2254, because at the time Stow filed his petition he was not "in custody pursuant to the judgment of a State court." Thus, to obtain habeas relief, Stow need only show that a retrial would violate his right against double jeopardy. We need not consider whether the Hawaii Supreme Court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." § 2254(d)(1).

We further hold that the jury's "Not Guilty" verdicts create a double jeopardy bar to Stow's impending retrial on the charges of attempted second degree murder. To do otherwise, and allow an appellate court over six years later to speculate whether the jury really meant to acquit when it wrote "Not Guilty," would create an unwarranted exception to the "fundamental" and "absolute" rule of double jeopardy that a jury's verdict of acquittal is final — an exception that would inevitably undermine the rule's "absolute" nature. See Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) ("[W]e necessarily afford absolute finality to a jury's verdict of acquittal.") (emphasis in original). Accordingly, we affirm.

I. BACKGROUND

Stow was indicted in Hawaii state court on charges stemming from Stow's machete attacks on Douglas Parkinson and Samuel Nash. Stow allegedly attacked Parkinson because Parkinson would not share his beer. The machete attack resulted in permanent injuries to Parkinson's head, face and wrist from numerous machete blows. The next day, Stow allegedly attacked Nash because Stow gave Nash nine dollars to purchase liquor, but when Nash returned from the store he would not share any of the alcohol he had purchased. Nash sustained lacerations to his face, head and leg as a result of the machete attack.

The State charged Stow with attempted murder in the first degree, in violation of Hawaii Revised Statute ("HRS") §§ 705-500 (criminal attempt) and 707-701(1)(a) (murder in the first degree) (Count One). Section 707-701 defines murder in the first degree as intentionally or knowingly causing the death of "[m]ore than one person in the same or separate incidents." The same indictment charged Stow with two separate counts of attempted murder in the second degree, based on the same two incidents. Count Three of the indictment charged Stow with the attempted murder of Samuel Nash on April 17, 1996. Count Five of the indictment charged Stow with the attempted murder of Douglas Parkinson on April 18, 1996.¹ Section 707-701.5 defines murder in the second degree as intentionally or knowingly causing the death of another person.

At the end of the trial, the judge instructed the jury that Stow was charged with more than one offense:

The defendant is charged with more than one offense under separate counts in the complaint. Each count and the evidence that applies to that count is to be considered separately. The fact that you may find the defendant not guilty or guilty of one of the counts charged does not mean that you must reach the same verdict with respect to any other count charged.

The judge proceeded to define the offense of attempted murder in the first degree.² The judge then instructed the jury that:

If you find the defendant not guilty in count one of the offense of attempted murder in the first degree, or if you're unable to reach a unanimous verdict as to this offense, then you must consider whether the defendant is guilty or not guilty in counts three and five of the offense of attempted murder in the second degree.

Contrary to Hawaii law,³ the judge did not instruct the jury to stop deliberating if it found Stow guilty of Count One.⁴ The judge proceeded to instruct the jury on the elements of attempted second degree murder. Finally, the judge admonished the jury that its "verdict must represent the considered judgment of each juror, and in order to return a verdict, it is necessary that each juror agrees thereto."

On October 26, 1998, the jury returned its verdict. On the verdict form, the jury foreperson wrote "Guilty" next to Count One, attempted murder in the first degree. In accordance with the trial court's instructions and the verdict form, having found Stow guilty of attempted first degree murder, the jury answered Special Interrogatory # 1 in the affirmative — that the prosecution had proven beyond a reasonable doubt that Stow was not under the influence of extreme mental or emotional disturbance at the time he committed the crime.

The jury foreperson also wrote "Not Guilty" next to Counts Three and Five, the two counts of attempted second degree murder. The jury foreperson signed and dated the verdict form. There were no other markings on the verdict form.⁵

When the trial court received the jury's verdict it only announced the verdict on Count One. The court polled each juror, and each juror responded that the verdict represented his own individual verdict. The court's final judgment and commitment order only reflected the jury's verdict on Count One. There is no evidence in the record that the trial court was aware of the jury's "Not Guilty" verdicts on the two counts of attempted second degree murder.

On direct review, the Hawaii Intermediate Court of Appeals affirmed Stow's conviction. Ultimately the Hawaii Supreme Court reversed the guilty verdict on the charge of attempted first degree murder for insufficiency of the evidence.⁶ Stow, slip op. at 28-29.

The Hawaii Supreme Court held that the jury's not guilty verdicts did not constitute a double jeopardy bar to a retrial of the two counts of attempted murder in the second degree, and remanded for a new trial on those counts. Id. at 34. Citing United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977), the court explained that "[a] verdict of acquittal represents the factfinder's conclusion that the evidence does not warrant a finding of guilty." Stow, slip op. at 31. The court further explained that "an acquittal must actually, in both substance and form, acquit the defendant of the charged offense." Id. at 32. The court held that although the "Not Guilty" verdicts constituted an acquittal "in form," they did not constitute an acquittal "in substance." Id. The court, however, never questioned that the "Not Guilty" verdicts did not, in fact, constitute verdicts under Hawaii law.⁷

Prior to his pending retrial on the two counts of attempted second degree murder, Stow filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the District of Hawaii. The magistrate judge, in his proposed Findings and Recommendations, recommended that the petition be granted. See Stow v. Murashige, No. Civ. 02-00766 SOM-KSC, 2003 WL 22383021, *8 (D.Haw.2003). The district court, without considering whether § 2254 was the proper jurisdictional basis for Stow's habeas petition, granted the petition and ordered Stow released from state custody, ruling that the Hawaii Supreme Court's decision was both "contrary to" and an "unreasonable application of" clearly established federal law, warranting relief under both 28 U.S.C. §§ 2254(d)(1) and (2). Stow v. Murashige, 288 F.Supp.2d 1122 (D.Haw.2003).

II. STANDARD OF REVIEW

We review de novo a district court's decision to grant a habeas petition pursuant to 28 U.S.C. § 2254. See Alcala v. Woodford, 334 F.3d 862, 868 (9th Cir.2003). We also review de novo a district court's decision to grant a habeas petition pursuant to 28 U.S.C. § 2241. See Hunter v. Ayers, 336 F.3d 1007, 1011 (9th...