GROUNDS FOR RELIEF
THE FELONY MURDER CONVICTION AND FIREARM ENHANCEMENT CONVICTIONS IN THIS CASE HAVE NOT YET BEEN ADJUDICATED BY THE TRIAL COURT AND REMAIN PENDING BEFORE THE TRAIL COURT PLACING PETITIONER IN ONGOING JEOPARDY WITH SUBSTANTIAL POTENTIAL PUTATIVE CONSEQUENCE WITH INHERENT RESULT OF ALL POST CONVICTION PROCEEDINGS IN THIS CASE BEING NULL AND VOID BECAUSE STATE DIRECT APPEAL RIGHT DO NOT BEGIN UNTIL TRIAL COURT ENTERS A FINAL JUDGMENT AND SENTENCE ON THE SAID PENDING FELONY MURDER AND FIREARM ENHANCEMENT CONVICTIONS.
Petitioner was convicted of a single crime of first degree murder in a single count of premeditated first degree murder and the alternative crime of first degree felony murder by jury verdict, see State v. Meas, 118 Wn.App. 297, 75 P.3d 998 (2003) review denied 151 Wn.2d 1020, 91P.3d 95 (2004) (“ Aggravated first degree murder and first degree felony murder are two different crimes, with different statutory elements”); State v. Irizarry, 111 Wn.2d 591, 783 P.2d 432 (1988) (“These statutory aggravating circumstances are ‘aggravation of penalty’ factors and are not ‘elements’ of the crime as such. Felony murder is not a lesser degree of aggravated murder in the first degree”); State v. Turner, 169 Wn.2d 448, 238 P.3d 461 (2010) (“for purpose of double jeopardy protection against multiple punishments for the same criminal conduct, “punishment” encompasses more than just a sentence for conviction. Even a conviction alone without an accompanying sentence, can constitute “punishment” implicating the protection against double jeopardy. The separate conviction, apart from any concurrent sentence, has potential adverse collateral consequences that may not be ignored; i.e., the conviction itself, even without imposition of a sentence, carries an onus having punitive effect”); United States v. Vote, 51 F.3d 178, 181-83 (9th Cir. 1995) (retrial not precluded where conviction was “reversed” but mandate did not contain “order dismissing the cases or an order directing acquittal,” particularly given lack of language in opinion to suggest that panel thought retrial was not appropriate); State v. Njonge, 181 Wn.2d 546, 556, 334 P.3d 1068 (“We cannot presume the existence of fact to which the record is silent”), cert. Denied, 135 S.Ct. 880 (2014). This is not a case where aggravated first degree murder and first degree felony murder were charged in separate counts, see 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. The State 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 trial court with directions to vacate the merged convictions”).
CANNOT CONDITIONALLY DISMISS DOUBLE JEOPARDY CONVICTIONS
State v. Womac, 160 Wn.2d 643, 160 P.ed 40 (Wash. 2007);
Following a jury trail, Brian Womac was convicted of homicide by abuse (Count I), second degree felony murder (Count II), and first degree assault (Count III) for the death of his son, Anthony Owings. The trial court entered judgment on all three convictions but imposed an exceptional sentence on Count I only (homicide by abuse). The court denied Womac’s motion to dismiss Counts II and III and left both on his record absent accompanying sentences.
The Court of Appeals affirmed Womac’s conviction for Count I. The court also remanded for resentencing within the standard range on the count and directed the trial court to conditionally dismiss Counts II and III, allowing for reinstatement should Count I later be reversed, vacated, or set aside.
We reverse the Court of Appeals’ order to conditionally dismiss Counts II and III, and we direct the trial court to vacate Womac’s convictions for both charges.
The (trial) Court found the convictions for Counts II and III were “valid,” but to avoid violating doubel jeopardy provisions did not impose sentences on either count…The trial court determined double jeopardy did not require dismissal of Counts II and III and left both convictions on Womac’s record.
Womac filed a petition for review asking this court to determine (1) whether the Court of Appeals erred when it help the trial court is not required to vacate his convictions for felony murder and assault… We new affirm the Court of Appeals remand for re sentencing on Count I within the standard range and reverse the Court of Appeals’ order to conditionally dismiss Counts II and III. Accordingly, we direct the trial court to vacate Womac’s convictions for felony murder and assault in the first degree. We review questions of law de novo, State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996). RCW 10.43.050 affords defendants protections against double jeopardy, providing in part:
Whenever a defendant shall be acquitted or convicted upon an indictment or information charging a crime consisting of different degrees, he cannot be proceeded against or tried for the same crime in another degree, nor for an attempt to commit such crime, or any degree thereof.
WASHINGTON STATE’S “SAME EVIDENCE” DOUBLE JEOPARDY RULE
State v. Womac, 160 Wn,2d 643, 160 P.3d 40 (Wash. 2007):
Washington follows the “same evidence” rule which this court adopted in 1896, State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995) “The defendant’s double jeopardy rights are violated if he or she is convicted of offenses that are identical both in fact and in law.” Id at 777. The :same evidence” rule is sometimes referred to as the “‘same elements’ test.” See Gocken, 127 Wn.2d at 101 (quoting United States v. Dixon, 59 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993)). “Washington’s ‘same evidence’ test is very similar to the rule set forth in Blockburder v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).” Calle, 125 Wn.2d at 777. The same evidence rule controls “unless there is a clear indication that the legislature did not intend to impose multiple punishment.” State v. Gohl. 109 Wn.App. 817, 821, 37 P.3d 293 (2001).
“Offenses are not constitutionally the same if there is any element in one offense not included in the other and proof of one offense would not necessarily prove the other.” State v. Trujillo, 112 Wn.App. 390, 410, 49 P.3d 935 (2002) (citing Calle, 125 Wn.ed at 777-78. Washington courts, however, have occasionally found a violation of double jeopardy despite a determination that the offenses involved clearly contained different legal elements. State v. Schwab, 98 Wn.App. 179, 184-85, 988 P.2d 1045 (1999) (“See State v. Jobson, 92 Wn.2d 671, 679-80, 600 P.2d 1249 (1979) (examining convictions for first degree rape, first degree kidnapping, and first degree assault convictions even though the offenses involve different legal elements of, the first degree rape)…; State v. Potter, 31 Wn.App. 883, 887-88, 645 P.2d 60 (1982) (concluding that convictions for reckless endangerment and reckless driving violated double jeopardy despite differing legal elements where the reckless endangerment conviction arose out of an act of reckless driving”)). See also In re Pers. Restraint of Burchfield, 111 Wn.App. 892, 899, 46 P.3d 840 (2002) (“although the offenses fo not contain identical legal elements, we conclude that the Legislature did not intend to punish shooting a victim both as an assault and as homicide.”)
In Gohl, Division One of the Court of Appeals help convictions for both assault and attempted murder violated double jeopardy even though incarceration was imposed for attempted murder only. The court concluded double jeopardy was implicated because attempted first degree murder and first degree assault convictions are the “same in law and in fact.” 109 Wn.App. At 822. Accordingly, the court vacated the assault convictions. Id.
2. Gohl relied on State v. Read, 100 Wn.App. 776, 998 P.2d 897 (2000), for the proposition that second degree murder and first degree assault were the same in fact because they were based on the same act directed at the same victim, and that the offenses were the same in law for “where the harm is the same for both offenses, it would be inconceivable that the Legislature intended double punishment for both.” Gohl., 109 Wn..App. At 821.
In State v. Read, 100 Wn.App. 776, 998 P.2d 897 (2000), Division Three of the Court of Appeals found convictions for second degree murder and first degree assault conviction. The Read court determined the offenses were legally “the same” under the “same evidence test” since proof of second degree intentional murder necessarily also proves first degree assault. Id at 791-92. The court found the offenses were the same “in fact” because the offenses were based on the same act directed toward the same victim. Id. At 791. This determination was made despite the fact that the sentencing court did not; “expressly find that the two crimes were the ‘same criminal conduct.’” Id. At 793 n. 7.
C. Womac’s Three Convictions Constitute the “Same Offense” for Purposes of Double Jeopardy.
Here, the trial court found all three of Womac’s counts constituted the “same criminal conduct.”
However, notwithstanding double jeopardy concerns, the trial judge found Counts II and III to be “valid conviction (a).”
In State v. Schwab, Division One of the Court of Appeals found convictions for second degree felony murder and first degree manslaughter for a single homicide violated double jeopardy. First, the court determined “second degree felony murder and first degree manslaughter are not the same offense in law” as “each offense includes and element that is not included in the other.” 98 Wn.App. At 184. But while application of the “same evidence” test is indicative of legislative intent, the test is not always dispositive as to whether two offenses are the same for double jeopardy purposes. Calle, 125 Wn.2d a6 778, 780.
State v. Bowerman, 115 Wn.2d 7941 802 P.2d 116 (1990):
Over defense counsel’s objection, the trial court did instruct the jury that felony first degree murder was a lesser included offense of aggravated first degree murder. The jury found Bowerman guilty of aggravated first degree murder.
Count 1 of the fourth amended information charged Bowerman with the single crime of first degree murder. The count alleged two alternative ways of committing that single crime: (1) aggravated, premeditated murder, and (2) felony murder. Premeditated murder and felony murder are not separate crimes. They are alternate ways of committing the single crime of first degree murder. State v. Ellison, 36 Wn.App. 564, 574-75, 676 P.2d 521, review denied, 101 Wn.2d 1010 (1984). Where there are alternate ways of commit a crime it is permissible to charge both alternatives in the same count. State v. Scott, 64 Wn.2d 992, 993, 395 P.2d 377 (1964). Had Bowerman 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 would have had a statutory riht 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 mental elements of recklessness and criminal negligence are lesser included mental states of intent. RCW 9A.08,010(2); State v. Jones, 95 Wn.2d 616, 621,628 P.2d 472 (1981). Therefore, both degrees of manslaughter are necessarily proved whenever aggravated first degree murder is proved. First and second degree manslaughter meet the first prong of the Workman test for lesser included offenses of aggravated first degree murder. The question then becomes whether the facts of the case support gibing the lesser included instructions. We concluded that they do not.
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 first 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.
Since she admitted being an accomplice in the first degree burglary, there was no evidence from which the jury could do anything other than find her guilty of first degree felony murder. As, such, there was no error in denying the first and second degree manslaughter instructions.
State v. Linton, 156 Wn.2d 777, 132 P.3d 127 (2006):
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 would violate Linton’s right against double jeopardy.
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 wich the jury was silent. Geen 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 State v. Schoel, 54 Wn.2d 388, 341 P.2d 481 (1959), 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 Wn.2d at 394. Where they jury found the defendant guilty of second degree murder but left the other verdict forms blank, this court held that the jury had implicityly acquitted the defendant of first degree murder. Id; see also State v. Anderson, 96 Wn.2d 739, 742, 638 P.2d 1205 (1982).
The United States Supreme Court explicitly distinguished between implicit acquittal and hung jury in Selvester v. United States, 170 U.S. 262, 269, 18 S.Ct. 580, 42 L.Ed.2d 1029 (1898). The Court stated:
Doubtless, where a jury, although convicting as to some, are silent as to other counts in an indictment, and are discharged without the consent of the accused,… the effect of such discharge is “equivalent to acquittal”…But such obviously is not the case, where a jury have not been silent as to a particular count, but where, on the contrary, a disagreement is formally entered on the record. The effect of such entry justifies the discharge of the jury, and therefore a subsequent prosecution for the offense as to which the jury has disagreed and on account of which it has been regularly discharged, would not constitute second jeopardy.
Sanabria v. United States, 437, U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978):
Petitioner, along with several others, was indicted for violating §1955 in a single count charging that the defendants’ gambling business involved numbers betting and betting on horse races in violation of a specified Massachusetts statute.
The trial judge granted their motion to exclude all evidence of numbers betting, and then granted a motion to acquit petition because of lack of evidence of his connection with the horse betting business… The court vacated the judgment of acquittal, and remanded for a new trial on the numbers charge.
Held: A retrial on the numbers theory of liability is barred by the Double Jeopardy Clause.
The Court of Appeals erroneously characterized the District Court’s action as a “dismissal” of the number’s theory. There was only one count charged, the District Court did not order language in the indictment stricken, and the indictment was not amended, but the judgment of acquittal was entered on the entire count and found petitioner not guilty of violating §1955 without specifying that it did so only with respect to one theory of liability.
To the extent that the District Court found the indictment’s description of the offense too narrow to warrant admission of certain evidence, the court’s ruling was an erroneous evidentiary ruling, which leg to an acquittal, however erroneous, bars further prosecution on any aspect of the count, and hence bars appellate review of the trial court’s error.
Even if it could be said that the District Court “dismissed” the number allegation, a retrial on that theory would subject petitioner to a second trial on the “same offense” of which he was acquitted. Under § 1955 participation in a single gambling business is but a single offense, no matter how many state statutes the enterprise violated, and with regard to this single gambling business, petitioner was acquitted. The Government having charged only a single gambling business, the discrete violations of state law that that business may have committed are not severable in order to avoid the Double Jeopardy Clause’s bar of retrials for the “same offense.”
Once the defendant has been acquitted, no matter how “egregiously erroneous” the legal rulings leading to the judgment of acquittal might be, there is no exception to the constitutional rule forbidding successive trials for the same offense. Fong Foo v. United States, 399 U.S. 141. Thus, here, while the numbers evidence was erroneously excluded, the judgment of acquittal produced thereby is final and unreviewable. Lee v. United States, 432 U.S. 23; Jeffers v. United States, 432 U.S. 137, distinguished. Pp. 437 U.S. 75-78.
Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43(1978):
The single-count indictment here charged in relevant part that the defendants’ gambling business involved “accepting, recording and registering bets and wagers on a parimutual number pool and on the result of a trial and contest of skill, speed, and endurance of beast.” and that the business “was a violation of the laws of the Commonwealth of Massachusetts.” Viewing the hose betting and numbers allegations as “discrete bases of criminal liability” duplicitously joined in a single count, the court characterized the District Court’s action as a “dismissal” of the numbers charge” and an acquittal for insufficient evidence on the hose betting charge.
The disputed question, however, is whether a retrial on the numbers theory of liability would be on the “same offense” as that on which petitioner has been acquitted.
The government contends, in accordance with the reasoning of the Court of Appeals, that the numbers theory was dismissed from the count before the judgment of acquittal was entered, and therefore that petitioner was not acquitted of the numbers theory. Petitioner responds that the District Court did not “dismiss” anything, but rather struck evidence and acquitted petitioner on the entire count; further, assuming arguendo that there was a “dismissal” of the numbers theory, he urges that a retrial on this theory would nevertheless be barred as a second trial on the same statutory offense. We first consider whether the Court of Appeals correctly characterized the District Court’s action as a “dismissal” of the numbers theory.
In the Government’s view, the numbers theory was “dismissed” from the case as effectively as if the Government has actually charged the crime in two counts and the District Court had dismissed the numbers count.
The first difficulty this argument encounters is that the Government did not, in fact, charge this offense in two counts. Legal consequence ordinarily flow from what has actually happened, not from what a party might have done from the vantage of hindsight. See Centrial Tablet Mfg. Co. v United States, 417 U,S, 673, 417 U.s. 690 (1974). The precise manner in which an indictment is drawn cannot be ignored because an important function of the indictment is to ensure that “in case any other proceedings are taken against the defendant for a similar offense, the record will show with accuracy to what extent he may plead a former acquittal of conviction.” Cochran v. United States, 457, U.S. 286, 157 U.S. 290 (1895), quoted with approval in Russell v. United States, 369 U.S. 749, 369 U.S. 764 (1962); Hagner v. United States, 285 U.S. 427, 285 U.S. 431 (1932). With regard to the one count that was in fact charged, as to which petitioner has been at least formally acquitted, we are not persuaded that it is correct to characterize the trial court’s action as a “dismissal” of discrete portion of the count. While form is not to be exalted over substance in determining the double jeopard consequences of a ruling terminating a prosecution, Serfass v. United States, 420 U.S. 377, 420 U.S. 392-293 (1975) ; United States v. Jorn, 400 U.S. 4780, 400 U.S. 478 n. 7 (1971) ; United States v. Goldman, 277 U.S. 229, 277 U.S. 236 (1928), neither is it appropriate entirely to ignore the form of order entered by the trial court, see United States v. Barber, 219 U.S. 72, 219 U.S. 78 (1911). Here the District Court issued only two orders, one excluding certain evidence and the other entering a judgment of acquittal on the single count charged. No language in the indictment was ordered to be stricken, compare United States v. Alberti, 568 F.2d 617, 621 (CA2 1977), nor was the indictment amended. The judgment of acquittal was entered on the entire count, and found petitioner not guilty of the crime of violating 18 U.S.C. § 1955 (1976 ed.), without specifying that it did so only with respect one theory of liability.
Even if the Government were correct that the District Court “dismissed” the numbers allegation, in our view, a retrial on that theory would subject petitioner to a second trial on the “same offense” of which he has been acquitted.
It is Congress, and not the prosecution, which establishes and defines offense. Few, if any, limitations are imposed by the Double Jeopardy Clause on the legislative power to define offenses. Brown v. Ohio, 432 U.S. 161, 432 U.S. 165 (1977). But once Congress has defined a statutory offense by its prescription of the “allowable unit of prosecution,” United States v. Universal C.I.T. Credit Corp, 344 U.S. 218, 344 U.S. 221 (1952)1 Bell v. United States, 349 U.S. 81 (1950) ; Braverman v. United States, 349 U.S. 49 (1942) ; In re Nielsen, 131 U.S. 176 (1889), that prescription determines the scope of protection afforded by a prior conviction or acquittal. Whether a particular course of conduct involves one or more distinct “offenses” under the statute depends on this congressional choice.
The allowable unit of prosecution under § 1955 is defined a participation in a single “illegal gambling business”. Congress did not assimilate state gambling laws per se into the federal penal code nor did it define discrete acts of gambling as independent federal offenses. See Iannelli v. United States, 420 U.S. 770, 420 U.S. 784-790 (1975).
The Government’s undisputed theory of this case is that there was a single gambling business, which engaged in both horse betting and numbers betting. With regard to this single business, participation in which is concededly only a single offense, we have no doubt that petitioner was truly acquitted.
The Double Jeopardy Clause is not such a fragile guarantee that… its limitations can be avoided by the simple expedient of dividing a single crime into a series of temporal or spatial units.” Brown v. Ohio, 32 U.S. 16 432 U.S. 169, 95, as we hold to day, into discrete bases of liability” not defined as such by the legislature.
While recognizing that only a single violation of the statute is alleged under either theory. The Government nevertheless contends that separate counts would have been proper, and that an acquittal of petitioner on a horse betting count would not bar another prosecution on a numbers count. Brief for United States 33. Although there may be circumstances in which this is true, petitioner here was acquitted for insufficient proof of an element of the crime which both such counts would share that he was “connected with” the single gambling business. See supra at 437 U.S. 59. This finding of fact stands as an absolute bar to any further prosecution for participation in that business.
The Government having charged only a single gambling business, the discrete violations of state law which that business may have committed are not severable on order to avoid the Double Jeopardy Clause’s bar on retrials for the “same offense.” Indeed, the government’s argument that these are discrete bases of liability warranting reprosecution following a final judgment of acquittal on one such “discrete basis” is quite similar to an unsuccessful argument that is presented in Braverman v. United States, 317 U.S. 49 (1942). Braverman had been convicted of and received consecutive sentences on four separate counts of conspiracy, each count alleging a conspiracy to violate a separate substantive provision of the federal narcotics laws. The Government conceded that only a single conspiracy existed, as it concedes here that only a single gambling business existed; nonetheless, it urged that separate punishments were appropriate because the single conspiracy had several discrete objects. We firmly reject that argument.
The precise nature and extent of the conspiracy must be determined by reference to the agreement which embraces and defines its objects. Whether the object of a single agreement is to commit one or many crimes, it is, in either case, that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements, and hence several conspiracies, because it envisages the violation of several statutes, rather than one.
The same reasoning must also apply where the essence of the crime created by Congress is participation in a “business,” rather than participation in an “agreement.”
The Double Jeopardy Clause is no less offended because the Government here seeks to try petitioner twice for this single offense, instead of seeking to punish him twice as it did in Braverman. It two offenses are the same…for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions. Brown v. Ohio, supra at 432 U.S. 166. Accordingly, even if the numbers allegation were “dismissed,” we conclude that a subsequent trial of petitioner for conducing the same illegal gambling business as that at issue in the first trial would subject him to a second trial on the “same offense” of which he was acquitted.
Finally, we agree with the Court of Appeals that this case does not present the hypothetical situation on which we reserved judgment in Serfass v. United States, of “a defendant who is afforded an opportunity to obtain a determination of a legal defense prior to trial, and nevertheless knowingly allows himself to be placed in jeopardy before raising the defense.” 420 U.S. 16 420 U.S. 394. Petitioner did not have a “legal defense” to the single offense charged: participating in an illegal gambling business in violation of § 1955. Unlike questions of whether an indictment states an offense, a statute is unconstitutional, or conduct set forth in an indictment violates the statute, what proof may be presented in support of a valid indictment and the sufficiency of the proof are not “legal defenses” required to be, or even capable of being resolved before trial.
To hold that a defendant waives his double jeopardy protection whenever a trial court error in his favor on a midtrial motion leads to an acquittal would undercut the adversary assumption on which our system of criminal justice rests… and would vitiate one of the fundamental rights established by the Fifth Amendment.
United States v. Cote, 51 F.3d 178, 181-83 (9th Cir. 1995) (retrial not precluded where conviction was “reversed” but mandate did not contain “order dismissing the cases or an order directing acquittal,” particularly given lack of language in opinion to suggest that panel thought retrial was not appropriate.)
State v. Schaffer, 135 Wn.2d 355, 957 P.2d 214 (1998):
The King County prosecutor charged Schaffer with premeditated murder and second degree felony murder… entered a judgment on a verdict finding defendant guilty of second degree felony 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 or 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 elect 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. Allen, No. 84384-0-II (2017):
Allen filed a motion to dismiss the aggravating circumstances based on double jeopardy. The trial court, relying primarily on Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 136 L.Ed.2d 314 (2013) (partial plurality opinion), concluded that the aggravating circumstances constituted elements of the crime and that Alleyne altered the prior line of cases in Washington as to aggravating circumstances. The court concluded that because the prior jury found that the State had not proved the aggravating circumstances, beyond a reasonable doubt, double jeopardy barred the State from retrying them.
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 nWn.2d 304, 307, 692 P.2d 823 (1985)). They are sentence enhancers used to “increase the statutory maximum sentence from life with the possibility of parole to life without the possibility of parole or the death penalty.” Thomas, 166n Wn.2d at 387-88 (quoting State v. Yates, 161 Wn.2d 714, 758, 168 P.3d 359 n(2007)). In Yates, 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.
The United States Supreme Court was cognizant of the fact that different sentencing schemes exist in different jurisdictions. None of these cases has overruled or altered our prior jurisprudence in this area. 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 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. Fuller, 185 Wn.2d 30, 367 P.3d 1057 (2016).
Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981) (A jury found Bullington guilty of capital murder in the guilt phase, but returned a sentence of less than death in the penalty phase. After a reversal of the conviction, the State once again sought the death penalty. The Court held that double jeopardy barred a retrial on the death penalty because the jury’s sentence in the first cast meant it had acquitted the defendant of the factors necessary to impose death. The Court based its holding on the fact that the penalty phase required trial-like procedures.)
Arizona v. Rumsey, 467 U.S. 203, 205, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984) (The jury convicted the defendant of armed robbery and murder in the first degree. The trial judge found no presence of aggravating circumstances and sentenced the defendant to life in prison for a minimum of 25 years. The Arizona Supreme Court set aside the sentence and remanded the case for re-sentencing. Ultimately, the United States Supreme Court held that the trial court’s findings of no aggravating circumstances constituted and acquittal.)
Price v. Georgia, 398 U.S. 323, 326, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970) (“The Fifth Amendment’s double jeopardy prohibition is not against being twice punished but against being twice put in jeopardy, the “twice put in jeopardy” language relates to a potential the risk that an accused for second time will be convicted of the “same offense” for which he was initially tried”)
State v. Thompson, 60 Wn.App. 662, 806 P.2d 1251 (1991):
Since felony murder is not a lesser included offense of aggravated first degree murder, a defendant charged with both felony murder and aggravated first degree murder may plead guilty to felony murder when arraigned for the first time however such a plea would not preclude the prosecutor from pursuing the companion charge of premeditated first degree murder and from seeking the death penalty upon proof of aggravating circumstances.
A criminal defendant charged with both felony murder and aggravated first degree murder cannot avoid trial on the charge of aggravated first degree murder by pleading guilty to the charge of felony murder.
State v. Daniels, 165 Wn.2d 627, 200 P.3d 711 (2009) (“The Fifth Amendment to the United States Constitution declares, “no person shall…be subject for the same offense to be twice put in jeopardy of life or limb.” Jeopardy in this content refers to being subject to the potential of punishment for an act, not the actual punishment for the act.”)