STATE OF WASHINGTON, Respondent, v. JOHNNY DALE FULLER, Petitioner.
NO. 91193-2
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
FEB 04 2016
EN BANC
FACTS AND PROCEDURAL HISTORY
Fuller was charged with two counts of assault in the second degree, one count of trafficking in stolen property in the first degree, and one count of possession of stolen property in the third degree.1 The charges arose from an incident in which Fuller allegedly hit Robert Scott with an aluminum baseball bat after Scott and another person confronted Fuller about allegedly stealing neighborhood children‘s bicycles. Count I charged assault in the second degree based on use of a deadly weapon, in violation of
The trial 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 on any other count. Although the jury was given an alternative means instruction for assault in the second degree,2 it was also given separate instructions for counts I and II, which specifically listed the elements the State had to prove to convict on each of those counts. The instructions for counts I and II clearly explained that to convict, the jury must find the evidence proved each element beyond a reasonable doubt.
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 counsels’ agreement, the court declared a mistrial as to count I due to a hung jury.
ANALYSIS
The United States Constitution and the Washington State Constitution protect individuals from being twice put in jeopardy for the same offense.
Fuller argues that prosecuting him again for assault in the second degree violates the constitutional bar on reprosecuting the same offense after acquittal. Suppl. Br. of Pet‘r at 4. He reasons that counts I and II were alternative means of committing a single assault, and that he was acquitted of committing that assault. Although Fuller is correct that the State may not reprosecute count II—the count on which he was acquitted—he is incorrect regarding reprosecution of the other charged means. Jeopardy did not terminate on count I specifically or on the overall offense of second degree assault. The State may therefore retry Fuller on count I without implicating double jeopardy.
Retrial on Count I Does Not Implicate Double Jeopardy Because Jeopardy Did Not Terminate on That Count or on the Assault Offense
The second degree assault statute,
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 offence, ... the record [will] sho[w] with accuracy to what extent he may plead a former acquittal or conviction.“’ 437 U.S. 54, 65-66, 98 S. Ct. 2170, 57 L. Ed. 2d 43 (1978) (alterations in original) (quoting Cochran v. United States, 157 U.S. 286, 290, 15 S. Ct. 628, 39 L. Ed. 704 (1895)). However, 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
The situation here is analogous to one in which a reviewing court reverses a conviction due to insufficient evidence of one alternative means of committing an offense, but remands for retrial on the remaining, valid, means. In State v. Ramos, we explained the alternative means principle:
The alternative means principle dictates that when a jury renders a guilty verdict as to a single crime, but one of the alternative means for committing that crime is later held to be invalid on appeal and the record does not establish that the jury was unanimous as to the valid alternative in rendering its verdict, double jeopardy does not bar retrial on the remaining, valid alternative mean.
163 Wn.2d 654, 660, 184 P.3d 1256 (2008).
This principle holds true “even when one alternative mean has been reversed on appeal due to a finding of insufficient evidence, a finding that has the same double jeopardy implications as an outright acquittal in other circumstances.” Id. at 661. For double jeopardy purposes, a reversal for insufficient evidence is equivalent to an acquittal “because it means ‘no rational factfinder could have voted to convict’ on the evidence presented.” Wright, 165 Wn.2d at 792 (quoting Tibbs v. Florida, 457 U.S. 31, 40-41, 102 S. Ct. 2211, 72 L. Ed. 2d 652 (1982)). Generally, an acquittal is a final adjudication that terminates jeopardy, thereby triggering double jeopardy protections and barring retrial for the same offense. See id. at 791-92; State v. Ahluwalia, 143 Wn.2d 527, 538, 22 P.3d 1254 (2001) (explaining mistrial due to a hung jury does not terminate double jeopardy because double jeopardy “require[s] a final adjudication to bar retrial of a charge“). However, in alternative means cases where a conviction is reversed because one 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 Wn.2d 828, 318 P.3d 266 (2014); State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980).
Our decision in Garcia guides our reasoning here. In Garcia, the defendant was convicted of first degree kidnapping, second degree burglary, and first degree criminal trespass. 179 Wn.2d at 832. Relevant here, Garcia challenged his kidnapping conviction, arguing there was “insufficient evidence to support each of the alternative means of kidnapping presented to the jury.” Id. This court agreed, finding there was insufficient evidence to support two of the three alternative means. Id. at 843. The court reversed Garcia‘s conviction, but remanded for a new trial on the remaining third valid alternative means. Id. at 844 (noting that where “‘it is impossible to rule out the possibility the jury relied on a charge unsupported by sufficient evidence ... [;] a defendant ... is entitled only to a new trial, not an outright acquittal, unless the record shows the evidence was insufficient to convict on any charged alternative‘” (quoting Wright, 165 Wn.2d at 803 n.12)). Although the State was not allowed to retry Garcia on the two means the court found unsupported by sufficient evidence, the State was permitted to retry Garcia on the third means for which sufficient evidence existed. See id.
The same principle applies here. Clearly, jeopardy never terminated as to the count on which the jury deadlocked, even though it terminated with respect to the count on which the jury acquitted. Cf., e.g., State v. Russell, 101 Wn.2d 349, 351, 678 P.2d 332 (1984) (double jeopardy does not
The double jeopardy principles that apply in the context of lesser included offenses also apply to alternative means crimes. For double jeopardy purposes, a lesser included offense is the “same offense” as the greater offense. See Brown v. Ohio, 432 U.S. 161, 168-69, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977). Where an individual is acquitted of the greater offense but the jury is declared hung on the lesser included offense, retrial of that lesser included offense is permitted and does not violate double jeopardy. See, e.g., Russell, 101 Wn.2d at 351-52 (holding retrial of lesser included offense of intentional second degree murder not barred by double jeopardy where petitioner was acquitted of premeditated first degree murder but the jury deadlocked on the lesser included offense); Ahluwalia, 143 Wn.2d at 540 (holding double jeopardy does not prohibit retrial of petitioner for second degree murder “following a mistrial in the first trial after the jury acquitted him of murder in the first degree and was unable to reach a verdict on the lesser charge of murder in the second degree“).
In this case, the jury acquitted Fuller of one means of committing assault and deadlocked on the other. As in cases in which the jury acquits the defendant of the greater crime but is hung on the lesser included offense—the “same crime” for double jeopardy purposes—Fuller may be retried on the means on which the jury could not agree. Jeopardy as to that means, and for the crime as a whole, has not terminated.
It is important to recognize that Fuller could not have reasonably relied on the jury‘s acquittal as terminating jeopardy for second degree assault because it took place at the same time the jury deadlocked on the same offense. All of the charges were brought in one trial, before one jury. In one proceeding, the jury simultaneously acquitted Fuller on one means of committing an offense and was hung on the other means. Fuller stands in the same position as a defendant who is simultaneously acquitted and convicted of the same offense under two subsections of a statute. 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. See Williams v. Warden, 422 F.3d 1006 (9th Cir. 2005) (holding double jeopardy is not violated when an individual is simultaneously acquitted and convicted of driving under the influence of a controlled substance and proximately causing death).
Fuller‘s Reliance on Sanabria and Wright Is Misplaced
Fuller relies heavily on Sanabria and Wright for the proposition that an acquittal on one means of committing assault in the second degree is “‘an absolute bar to any further prosecution.“’ Suppl. Br. of Pet‘r at 8 (quoting Sanabria, 437 U.S. at 73). Fuller‘s reliance on both cases is misplaced. Fuller‘s case is distinguishable from Sanabria because Fuller‘s acquittal and mistrial occurred in a single proceeding, and because Fuller was never acquitted of the crime of assault in the second degree. Regarding Wright, the language Fuller relies on is overbroad dicta.
In Sanabria, a single-count indictment charged the defendant with involvement in an illegal gambling business that concerned numbers betting and horse betting. 437 U.S. at 57. The trial court struck all evidence of the numbers betting because the indictment laid out the wrong section of state law. Id. at 58-59. With evidence of the numbers betting excluded,
Fuller‘s case is distinguishable from Sanabria in two key ways. First, in Sanabria, the Court was contemplating a new prosecution after a full acquittal. It prohibited ”further prosecution for participation in that [gambling] business,” because there was an acquittal on an element of the crime which the current and future crimes would share. 437 U.S. at 73 (emphasis added). Sanabria thus concerned the collateral estoppel element of double jeopardy preventing future prosecution of new charges. However, in Fuller‘s case there is no new prosecution. The State brought its charges in one prosecution, for which there was a simultaneous acquittal and mistrial. The retrial the State seeks is not “further” prosecution; it is continued prosecution of the same charge on which the jury was declared hung. Cf. Williams, 422 F.3d at 1011 (noting, ”Sanabria ... protects Williams from further prosecution on the same offense under a different theory, but it does not apply in this case, where the two theories of culpability were presented to the same jury simultaneously” and the jury convicted on one theory and acquitted on the other).
Second, in Sanabria, the trial court acquitted “on the entire count and found petitioner not guilty of the crime of violating
Fuller‘s reliance on Wright is likewise ineffectual. Fuller depends specifically on this statement in Wright: “When a proceeding ends in an undisturbed verdict or verdict equivalent on any alternative, the State may not prosecute the defendant on any other means of committing the same offense.” 165 Wn.2d at 802. Wright cites Sanabria for this proposition, id., but it is clearly an overstatement of Sanabria‘s holding.6 As explained, Sanabria is distinguishable because it contemplated further prosecution after a full acquittal on the offense as a whole.
Furthermore, recent case law undermines the dicta in Wright. In Garcia, the court found insufficient evidence to support two of the three presented alternative means of committing kidnapping. 179 Wn.2d at 843. Although that finding is functionally equivalent to an acquittal for double jeopardy purposes, see Ramos, 163 Wn.2d at 661, the court
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 the jury deadlocked does not implicate double jeopardy.
CONCLUSION
We hold that when the State charges alternative means of committing an offense in separate counts and the jury acquits on one count but deadlocks on the other, the State may retry the defendant on the count on which the jury was declared hung. Retrial on that count does not violate the prohibition against double jeopardy because jeopardy never terminated as to that count or as to the overall offense. We affirm.
Stephens, J.
WE CONCUR:
Madsen, C.J.
Wiggins, J.
Johnson, J.
González, J.
Owens, J.
Gordon McCloud, J.
Fairhurst, J.
Yu, J.