GROUNDS FOR RELIEF
CHARGING THE CRIME OF AGGRAVATED FIRST DEGREE MURDER OR IN THE ALTERNATIVE FIRST DEGREE FELONY MURDER IN THIS CASE IS UNCONSTITUTIONAL IN PART BECAUSE THERE IS NO SUCH CRIME AS “AGGRAVATED FIRST DEGREE MURDER” AND CHARGING PREMEDITATED MURDER AS AN ALTERNATIVE TO FELONY MURDER IN A SINGLE COUNT INFORMATION THAT RESULTS IN JURY VERDICT OF GUILTY AS TO BOTH ALTERNATIVES HAS THE LEGAL FORCE AND EFFECT OF PREVENTING THE TRIAL COURT FROM DISMISSING HALF THE JURY VERDICT IN A SINGLE COUNT SINGLE CRIME CONVICTION THEREBY PREVENTING APPLICATION OF RCW 10.95.020 AGGRAVATION OF PENALTY IS NOT APPLICABLE TO FIRST DEGREE FELONY MURDER.
In this Case Petitioner was convicted of both alternatives to the single crime of First Degree Murder, to wit: 9A.32.030 (1) (a) premeditated murder and RCW 9A.32.030 (1) (c) felony murder creating a legally insufficient and unconstitutional conviction. As pointed out below the Washington Supreme Court has conflicting decisions regarding a “to convict” jury instruction as to whether or not the “to convict” instruction is required to include elements of aggravating factors and whether or not unanimity is required; concluding in Irizarry that first degree premeditated murder and first degree felony murder are separate and distinct crimes and felony murder is not lesser included offense of first degree premeditated murder; and in St. Pierre that if a criminal defendant is convicted of a crime not charged, felony murder, as lesser included to premeditated murder, then the criminal defendant’s conviction of an uncharged non-lesser included offense can stand; with the Supreme Court further concluding in Strandy that when a criminal defendant is convicted of “two counts of felony murder and two counts of aggravated first degree murder,” in separate counts, then the felony murder conviction can be vacated based on some unexplained “merger” of the separate and distinct criminal offenses; however, in Bowerman the Washington Supreme Court concluded that a criminal defendant charged with two alternative ways to commit First Degree Murder, both premeditated and felony murder in a single count, then the criminal defendant count not separate the two counts for the purpose of pleading guilty, inherently ruling that a conviction of premeditated murder and felony murder as alternative ways to commit a single crime resulting in a single conviction of a single count, cannot be separated because the dismissal of one alternative would constitute dismissal of the entire count; as implicitly held in Allen; whereas in Fuller the Supreme Court concluded that when a criminal defendant is acquitted of one of two alternative ways to commit a single offense that is charged in separate counts, no double jeopardy concerns arise; all of which results in legally inconsistent and irrational judicial reasoning in Schaffer and Tilli; which cannot be reconciled with the foregoing and Irizarry.
CHARGING IN THE ALTERNATIVE IN THIS CASE IS UNCONSTITUTIONAL
State v. Mills, 154 Wn.2d 1, 9-10, 109 P.3d 415 (2005) (To convict instruction need not include elements of aggravating factors)
State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980):
In the instant case, however, the alternative ways of committing aggravated murder in the first degree are themselves separate and distinct criminal offense. In order to convict a defendant of either kidnapping or rape, the State must prove every statutory element of that crime beyond a reasonable doubt to a unanimous jury. Where, as here, the commission of a specific underlying crime is necessary to sustain a conviction for a more serious statutory offense, jury unanimity as to the underlying crime is imperative.
In re Pers. Restraint of Elmore, 162 Wn.2d 236, 172 P.3d 335 (2007):
The aggravating circumstance at issue, concealment of a crime, is set forth in RCW 10.95.020 (9). This court has rejected due process challenges to this statutory aggravator. In State v. Jeffries, 105 Wn.2d 398, 419-20, 717 P.2d 772, cert. Denied 479 U.S. 922 (1986), this court held that due process does not require that the specific crime be charged and included in the jury instructions. See also State v. Gentry, 125 Wn.2d 570, 602-03, 88 P.2d 1105 (predicate crime need not be identified), cert. Denied, 516 U.S. 843 (1995). Neither Jones (Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)) nor Schad (Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991)) dictates a different result. The exact crime is not an element of the aggravating circumstance under the statute. Additionally, the jury here was required to determine beyond a reasonable doubt, whether the murder was committed to conceal a crime. Thus, Elmore did receive the protections dictated by Jones and Schad. Elmore presents no convincing reason for the court to reconsider its decision.
State v. Irizarry, 111 Wn.2d 591, 763 P.2d 432 (1988):
The defendant Ranson was convicted of the “included offense” of felony murder… The statute defining aggravated first degree murder is equally clear; that crime is premeditated murder in the first degree (not murder by extreme indifference or felony murder) accompanied by the presence of one or more of the statutory aggravating circumstances listed in the criminal procedure title of the code (RCW 10.95.020).
These statutory aggravating circumstances are “aggravation of penalty” factors and are not “elements” of the crime as such. A lesser included offense exists only “when all of the elements of the lesser offense are necessary elements of the greater offense.”Because commission of a felony is not a necessary element of aggravated murder in the first degree, it follows that the offense of felony murder cannot be an included offense within the charge of aggravated murder in the first degree. Similarly, felony murder is not a lesser degree of aggravated murder in the first degree…Since the defendant in this case was charged with aggravated murder in the first degree ) i.e., the crime of premeditated murder in the first degree plus a statutory aggravating circumstance), an instruction on the lesser included offense of premeditated murder in the first degree (i.e., the crime of premeditated murder in the first degree without statutory aggravating circumstances) could have been given. Since the defendant was not convicted of premeditated murder in the first degree (nor of any lesser included offense or lesser degree of the crime), reversal is mandated. Dismissal of all charges against the defendant is not, however, mandated. The jury having convicted the defendant may still be charged with that offense without violating constitutional double jeopardy prohibitions.
In the matter of the Personal Restraint Petition of St. Pierre, 118 Wash.2d 321, 823 P.2d 492 (1992):
Personal restraint petitioner convicted of felony murder failed to show actual and substantial prejudice, even though information did not charge petition with felony murder, where petitioner was charged with aggravated first degree murder with commission of felony as the aggravating circumstance, and courts routinely instructed juries that crime of aggravated first degree murder included lesser offense of felony murder; petitioner did not lack notice he might be convicted of felony murder.
In re Pers. Restraint of Strandy, 171 Wn.2d 817, 256 P.3d 1159 (2011) (Per Curiam):
Robert Strandy Jr. was convicted of two counts of felony murder and two counts of aggravated first degree murder. For sentencing purposes, the trial court merged the felony murder convictions with the aggravated first degree murder convictions, but it did not vacate the felony murder convictions. The Sate conceded that Strandy is entitled to vacation of the felony murder convictions. We grant Strandy’s motion for discretionary review only on this issue and remand to the trail court with directions to vacate the merged convictions.
Personal Restraint of St. Pierre, 118 Wn.2d 321, 823 P.2d 492 (1992):
The State failed to comply with the requirement in this case, the corrected amended information charge petitioner with aggravated first degree murder, first degree premeditated murder, first degree kidnapping, and second degree assault. Petitioner was convicted of felony murder, which was not expressly charged and which is not properly treated as an included offense within aggravated first degree murder. Irizarry, 111 Wn.2d at 592. Petitioner now bears the burden of showing by a preponderance of the evidence that this error caused him actual and substantial prejudice.
State v. Bowerman, 115 Wn.2d 794, 802 P.2d 116 (1990):
In State v. Martin, 94 Wn.2d 1, 614 P.2d 164 (1990), this court held that CrR 4.2 (a) grants a criminal defendant the right to plead guilty “unhampered by a prosecuting attorney’s opinions or desires.” Martin, at 5. However, that right is not, as Boweman asserts, a right to plead guilty to just one alternative means of committing a crime when more than one means is charged. The statutory right to plead guilty is a right to plead guilty to the information as charged… Had Boweman been rearraigned on the amended information, she would have been rearraigned on both alternate ways of committing the one crime of first degree murder charged in count 1. At that time she o=would have had a statutory right to plead guilty to first degree murder. She would not have had the right to choose one portion (felony murder) of the charges against her and plead guilty to just that portion of the charge…The statutory right to plead guilty recognized in Martin cannot be stretched so far as to include a right to plead guilty to only one alternative means out of several that are charged. Where an information alleges more than one means of committing a single crime, the right to plead guilty is a right to plead guilty to the one crime charged. (Footnote 4. Contrary to Bowerman’s argument, even if she had been able to plead guilty to felony murder, that would not necessarily have prevented trial on the aggravated murder charge. See Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) and State v. Netling, 46 Wn.App. 461, 731 P.2d 11, review denied, 108 Wn.2d 1011 (1987))…Bowerman’s diminished capacity defense only goes to negate her capacity to premeditate on, and form the intent to bring about, the death of Nickel. If the jurors believed Bowerman’s defense, they would have found her not guilty of aggravated first degree murder. That defense did nothing, however, to negate Bowerman’s alternative charge of fist degree felony murder.
Intent and premeditation are not elements of first degree felony murder. See RCW 9A.32.030 (1) (c). The only state of mind the prosecution need prove to establish felony murder is the state of mind necessary to commit the underlying felony. State v. Osborne, 102 Wn.2d 87, 93, 684 P.2d 683 (1984).
State v. Allen, _Wn.App. _,_ P.3d _ (2017) (No. 48384-0-II):
Premeditated murder in the first degree with aggravating circumstances is not a crime in and of itself. The crime is premeditated murder in the first degree, which is accompanied by statutory aggravators. State v. Roberts, 142 Wn.2d 471, 501, 14 P.3d 713 (2000). Aggravating circumstances are “not elements of the crime, but they are ‘aggravation of penalty’ factors.” State v. Brett, 126 Wn.2d 136, 154, 892 P.2d 29 (1995) (quoting State v. Kincaid, 103 Wn.2d 304, 307, 692 P.2d 823 (1985)). In State v. Yates, 161 Wn.2d 714, 168 P.3d 359 (2007), the court rejected the argument that murder in the first degree was a lesser included offense of murder in the first degree with aggravating circumstances. 161 Wn.2d at 761. Our courts have consistently ruled that aggravating circumstances enhancing premeditated murder in the first degree are not elements. Kincaid, 103 Wn.2d at 207-10. But the United States Supreme Court has held in numerous cases that factors that raise the penalty for a crime, other than an act of conviction, are the functional equivalent of elements. In other words, they are akin to elements, must be submitted to a jury, and must be proved beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)…Washington courts have recognized these changes in a variety of contexts, ut in particular in a capital case. In State v. McEnroe, the court held that an aggravating circumstance in a death penalty case become the functional equivalent of an element of the crime. 181 Wn.2d 375, 382, 333 P.3d 402 (2014)…Premeditated murder in the first degree remains a separate crime from premeditated murder in the first degree with aggravating circumstances. The aggravating circumstances are the functional equivalent of elements that must be submitted to the jury and must be proved by the State beyond a reasonable doubt…The State additionally argues that Washington courts have held that double jeopardy protections are not applicable to noncapital sentencing proceedings. Because those cases are factually distinguished from this case, we disagree with this broad assertion. Instead, we conclude that double jeopardy prohibits retrial on the aggravating circumstances that the jury determined the State had not proved beyond a reasonable doubt.
CHARGING ALTERNATE MEANS OF COMMITTING SINGLE CRIME IN SEPARATE COUNTS DOES NOT IMPLICATE DOUBLE JEOPARDY IF ACQUITTED ON ONE COUNT AND HUNG JURY ON THE OTHER COUNT
State v. Fuller, 185 Wn.2d 30, 367 1057 (Wash. 2016):
Petitioner Johnny Dale Fuller was charged with two counts of assault in the second degree, each count presenting an alternative means of committing the offense. The jury acquitted Fuller of one count and deadlocked on the other. The trial court declared a mistrial on that count, and the State sought to retry Fuller. Fuller moved to dismiss, arguing that retrial would subject him to reprosecution for the same offense after an acquittal, in violation of double jeopardy. The superior court denied Fuller’s motion, and the Court of Appeals affirmed. We hold that jeopardy never terminated as to the count the State seeks to retry and that the jury’s acquittal on the other count is of no consequence.
Count I charged assault in the second degree based on use of a deadly weapon, in violation of RCW 9A.36.021 (1) (c). Count II charged assault in the second degree based on “recklessly inflicting substantial bodily harm” in violation of RCW 9A.36.021 (1) (a).
The trail court instructed the jury that a separate crime was charged in each count, and that its verdict on one count did not control the verdict of any other count.
The jury found Fuller not guilty of count II (substantial bodily harm) but was unable to reach a verdict as to count I (deadly weapon). With counsel’s agreement, the court declared a mistrial as to count I due to hung jury.
The United States Constitution and the Washington State Constitution protects individuals from being twice put in jeopardy for the same offense. U.S. Const. Amnd. V (“nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb”); Wash. Const. Art. I, & 9 (“No persona shall…be twice put in jeopardy for the same offense.”) “The double jeopardy doctrine protect 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. Linton, 156 Wn.2d 777, 783, 132 P.3d 127 (2006).
The second degree assault statute, RCW 9A.36.021, articulated a single criminal offense and currently provides seven separate subsections defining how the offense may be committed. Although Fuller was charged with two separate counts, whether a case involves separate counts based on alternative means of a single count with two alternative means does not change the double jeopardy analysis.
As this court explained in State v. Wright, “a defendant charged and tried under multiple statutory alternatives experiences the same jeopardy as one charged and tried on a single theory. The defendant is in jeopardy of a single conviction and subject to a single punishment, whether the State charges a single alternative or several.” Wash.2d 783, 801 203 P.3d 1027 (2009). For the purposes of this double jeopardy analysis, it does not matter that the State charged Fuller with alternative means of committing the same crime in separate counts because ultimately he was charged with one offense. See State v. Smith, 159 Wash.2d 778, at 784, 154 P.3d 873 (2007).
In alternative means cases where a conviction is reversed because on means lacks sufficient evidence the functional equivalent of an acquittal, this court has remanded for a new trial based on the remaining valid means for which jeopardy never terminated. See State v. Garcia, 179 Wash.2d 828, 318 P.3d 266 (2014).
All of the charges were brought in one trial, before on jury. In one proceeding, the jury simultaneously acquitted Fuller on one means of committing an offense and was hung on the other means… He cannot reasonably rely on an acquittal on one means as being sufficient to terminate jeopardy for the overall offense when the jury simultaneously deadlocked on the other means.
Fuller was charged with alternative means of committing assault in the second degree, each means presented in a different count. The jury acquitted him of one means and was declared hung on the other, jeopardy thus terminated as to only one means of committing the offense; it did not terminate as to the offense overall or as to the means on which the jury could not agree. Because jeopardy never terminated as to the offense as a whole, retrying Fuller on the means on which they jury deadlocked does not implicate double jeopardy.
We hold that when the State charges alternative means of committing an offense in separate counts and the jury acquits on once count but deadlocks on the count on which the jury was declared hung.
State v. Schaffer, 135 Wn.2d 355, 957 P.2d 214 (1998):
The King County prosecutor charged Schaffer with premeditate murder and second degree felony murder…entered a judgment on a verdict finding defendant guilty of second degree felon murder.
The jury verdict precludes Schaffer from being retried on the first degree murder charge. Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Though he can be retried on the felony murder alternative for which the jury convicted him, manslaughter is not a lesser included of inferior degree of crime to felony murder. State v. Tamalini, 134 Wn.2d 725, 943 P.2d 450 (1998). Nevertheless, Schaffer was tried for a crime to which manslaughter is an included offense, and he was entitled to have the jury consider that alternative. Thus, if the State elects to retry him on the felony murder charge, and he again presents evidence supporting an instruction on manslaughter, the jury should be instructed on that offense as well. Since manslaughter will be a lesser included offense to the original charge, but not to felony murder, the instructions should refer to it simply as a lesser offense.
The trial court erred in failing to instruct the jury on manslaughter as a lesser included offense to premeditated murder. Schaffer’s murder conviction is therefore reversed.
State v. Tili, 139 Wn.2d 107, 985 P.2d 365 (1999):
The information also charged Tili with tree counts of first degree rape for each independent penetration of a different bodily orifice or the same orifice with a different object. At trial, Tili conceded he was guilty of rape, but argued that he was guilty of only one count of rape, not three. However, a jury convicted Tili of all three counts of first degree rape.
Under the facts in this case, we hold that Tili’s three separate rape convictions do not violate double jeopardy.
If a defendant is convicted of violating a single statute multiple times, the proper inquiry in a single statute case is “what ‘unit of prosecution’ has the Legislature intended as the punishable act under the specific criminal statute,” State v. Adel, 136 Wn.2d 629, at 634, 965 P.2d 1072 (1998) (citing Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955).
AGGRAVATED FIRST DEGREE PREMEDITATED AND FELONY MURDER
State v. Irizarry, 111 Wn.2d 591, 763 P.2d 432 (1988):
The defendant Ransom was tried before a jury on the charge of aggravated murder in the first degree. At the request of the prosecution, and over defense objections, the jury was not only instructed on the crime of aggravated murder in the first degree but also on the “included offense” of felony murder.
The defendant Ransom was convicted of the “included offense” of felony murder…Felony murder is not a lesser included offense with the offense of aggravated murder in the first degree, and the trial court erred in instruction the jury that it was. The defendant’s conviction of this non included offense constitutes prejudicial error requiring a new trial…We accepted review.
It is fundamental that under our state constitution an accused person must be informed of the criminal charge he or she is to meet at trial and cannot be tried for an offense not charged.
The statute defining aggravated first degree murder is equally clear; that crime is premeditated murder in the first degree (not murder by extreme indifference of felony murder) accompanied by the presence of one or more of the statutory aggravating circumstances listed in the criminal procedure title of the code (RCW 10.95.020). These statutory aggravating circumstances are “aggravation of penalty” factors and are not “elements” of the crime as such. A lesser included offense exists only “when all of the elements of the lesser offense are necessary elements of the greater offense.” Because commission of a felony is not a necessary element of aggravated murder in the first degree, it follows that the offense of felony murder cannot be an included offense within the charge of aggravated murder in the first degree.
Since the defendant in this case was charged with aggravated murder in the first degree (i.e., the crime of premeditated murder in the first degree plus a statutory aggravating circumstance), and instruction on the lesser included offense of premeditated murderer in the first degree (i.e., the crime of premeditated murder in the first degree without statutory aggravating circumstances) could have been given.
Since the defendant was not convicted of premeditated murder in the first degree (nor any lesser included offense or lesser degree of that crime), reversal is mandated.