Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 75784-4
Title of Case: State of Washington, Petitioner, v. Roy
B. Linton, Respondent.
File Date: 04/13/2006
Oral Argument Date: 05/26/2005
SOURCE OF APPEAL
----------------
Appeal from Superior Court,
Snohomish Co
02-1-02319-8
Honorable Larry E McKeeman
JUSTICES
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Authored by Mary Fairhurst
Concurring: James Johnson
Barbara A. Madsen
Bobbe J Bridge
Charles W. Johnson
Gerry L Alexander
Richard B. Sanders
Susan Owens
Tom Chambers
COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Seth Aaron Fine
Attorney at Law
Snohomish Co Pros Ofc
3000 Rockefeller Ave
Everett, WA 98201-4060
Counsel for Respondent(s)
Dana M Lind
Nielsen Broman & Koch PLLC
1908 E Madison St
Seattle, WA 98122-2842
Amicus Curiae on behalf of WASHINGTON ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
Lenell Rae Nussbaum
Attorney at Law
Market Pl Two Ste 200
2001 Western Ave
Seattle, WA 98121-2163
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
)
Petitioner, ) No. 75784-4
)
v. )
) EN BANC
ROY BERNARD LINTON, )
)
Respondent. ) Filed April 13, 2006
)
FAIRHURST, J. - Roy Bernard Linton was charged with first degree
assault. A jury convicted him of second degree assault based on an
instruction directing it to consider the lesser included offense of second
degree assault if it acquitted Linton of first degree assault or if it was
unable to agree on that charge. At the prosecutor's request, the trial
judge asked the jury whether it was able to reach a verdict as to first
degree assault and whether it would be able to do so with additional time.
After the jury indicated that it would not be able to come to a unanimous
verdict, the trial court declared the jury hopelessly deadlocked on first
degree assault. The State sought to retry the defendant for first degree
assault, but the trial court denied the State's motion on double jeopardy
grounds. The Court of Appeals affirmed, reasoning that because the
defendant was convicted of second degree assault, he was implicitly
acquitted of first degree assault. We find that the trial court improperly
inquired into the jury's reasoning on first degree assault. Had the judge
not done so, there would have been an implied acquittal on first degree
assault, but not for the reasons put forth by the Court of Appeals. We
therefore affirm the Court of Appeals based on different reasoning.
I. FACTUAL AND PROCEDURAL HISTORY
Linton was charged with first degree robbery and first degree assault. The
trial court instructed the jury that if they found Linton not guilty of
first degree assault or, if after full and careful consideration they were
not able to agree on disposition of that crime, then the jury should
consider the lesser included crime of second degree assault.1 During
deliberations, the jury submitted a note to the trial court stating that it
was 11 to 1 for a guilty verdict on first degree assault and asking whether
it had to submit a guilty verdict for second degree assault or whether it
was a hung jury for first degree assault. The court directed the jury to
reread the instructions, particularly instruction 23. Instruction 23 lays
out how the jury should proceed. With respect to the assault charges, it
provides:
You will next consider the crime of Assault in the First Degree as
charged in Count II. If you unanimously agree on a verdict, you must fill
in the blank provided in verdict form B the words "not guilty" or the word
"guilty," according to the decision you reach. If you cannot agree on a
verdict, do not fill in the blank provided in verdict form B.
If you find the defendant guilty on verdict form B, do not use verdict
form C. If you find the defendant not guilty of the crime of Assault in
the First Degree, or if after full and careful consideration of the
evidence you cannot agree on that crime, you will consider the lesser crime
of Assault in the Second Degree. If you unanimously agree on a verdict,
you must fill in the blank provided in verdict form C the words "not
guilty" or the word "guilty," according to the decision you reach. If you
cannot agree on a verdict, do not fill in the blank provided in verdict
form C.
Clerk's Papers (CP) at 93.
The jury found Linton not guilty of robbery. The jury entered the
following verdict on second degree assault on verdict form C:
We, the jury, having found the defendant, Roy B. Linton, not guilty of the
crime of Assault in the First Degree as charged in Count II, or being
unable to unanimously agree as to that charge, find the defendant guilty of
the lesser included crime of Assault in the Second Degree.
CP at 63; Verbatim Report of Proceedings (VRP) at 429. The jury left blank
verdict form B.
The judge directed the clerk to ask each juror whether the verdict she read
constituted his or her verdict in order to assure the court that the
verdict was unanimous. VRP at 429. Each juror responded that the
statement represented his or her verdict, and the judge accepted and filed
the verdict. VRP at 429-30. The State then requested the trial judge to
ask each juror whether they were able to reach a verdict on first degree
assault and whether they would be able to given more time. VRP at 430-31.
Defense counsel objected on the basis that the jury had reached a verdict.
VRP at 431. Yet the judge asked the presiding juror, based on the comments
and question the jury sent out, whether the jury would be able to arrive at
a unanimous verdict on first degree assault if given more time. VRP at
431. The presiding juror responded that they believed that based on the
evidence, the jury would not be able to come to a unanimous verdict with
additional time. VRP at 431.
The trial judge entered a finding that the jury was hopelessly deadlocked
on first degree assault, declared a mistrial as to that charge, and
discharged the jury with Linton's consent. The State then filed a motion
for retrial on first degree assault. The trial court denied the State's
motion on double jeopardy grounds and imposed an exceptional sentence for
the second degree assault conviction.2
The State appealed the trial court's denial of its motion for retrial on
first degree assault. The Court of Appeals affirmed in a published
opinion. State v. Linton, 122 Wn. App. 73, 93 P.3d 183 (2004). We granted
the State's subsequent petition for review. State v. Linton, 153 Wn.2d
1017, 108 P.3d 1229 (2005).
II. ISSUE
Was there an implied acquittal here barring retrial on first degree assault
on double jeopardy grounds?
III. ANALYSIS
The United States Constitution states that no person shall "be subject for
the same offense to be twice put in jeopardy of life or limb." U.S. Const.
amend. V. The Washington Constitution provides that no person shall "be
twice put in jeopardy for the same offense." Wash. Const. art. I, sec. 9.
"The federal and state {double jeopardy} provisions afford the same
protections and are 'identical in thought, substance, and purpose.'"3 In
re Pers. Restraint of Davis, 142 Wn.2d 165, 171, 12 P.3d 603 (2000)
(quoting State v. Schoel, 54 Wn.2d 388, 391, 341 P.2d 481 (1959)).
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. Graham, 153 Wn.2d
400, 404, 103 P.3d 1238 (2005); see also Brown v. Ohio, 432 U.S. 161, 165,
97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); North Carolina v. Pearce, 395 U.S.
711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled on other
grounds by, Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d
865 (1989). But, the protection against double jeopardy attaches only when
"some event, such as an acquittal, . . . terminates the original jeopardy."
Richardson v. United States, 468 U.S. 317, 325, 104 S. Ct. 3081, 82 L. Ed.
2d 242 (1984).
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" such that retrial on first
degree assault would violate Linton's right against double jeopardy.
Linton, 122 Wn. App. at 80. The State argues that because the trial court
found that the jury was hopelessly deadlocked on first degree assault,
there was no implied acquittal and Linton can be retried on that charge
under the hung jury rule. Linton asserts that double jeopardy protections
one and two apply here--that the conviction on second degree assault was an
implied acquittal of first degree assault, barring retrial for first degree
assault, and that conviction of second degree assault bars retrial for
first degree assault, the same offense for double jeopardy purposes. We
review questions of law de novo. Graham, 153 Wn.2d at 404.
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 which the jury was silent. Green 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
Schoel, 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 the jury found the
defendant guilty of second degree murder but left the other verdict forms
blank, this court held that the jury had implicitly acquitted the defendant
of first degree murder. Id; see also State v. Anderson, 96 Wn.2d 739, 742,
638 P.2d 1205 (1982).
However, numerous courts have distinguished between the situation
where a jury convicts on one or more offenses but is silent as to others,
and the situation where a jury is explicitly deadlocked on an offense,
reasoning that we cannot infer an acquittal where a jury is hung. The
United States Supreme Court explicitly distinguished between implicit
acquittal and a hung jury in Selvester v. United States, 170 U.S. 262, 269,
18 S. Ct. 580, 42 L. Ed. 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 offence as to which the jury has disagreed and on account of which
it has been regularly discharged, would not constitute second jeopardy.
Id. at 269 (emphasis added).
The Court of Appeals came to the conclusion asserted by the State in
State v. Kirk, 64 Wn. App. 788, 789-90, 828 P.2d 1128 (1992). Like the
situation here, the jury in Kirk entered a guilty verdict on a lesser
included offense without making a determination on the greater offense.
Id. at 790. After the court arrested judgment on the lesser included
offense because it was barred by a statute of limitations, the court
allowed retrial on the greater offense. Id. On appeal, the Court of
Appeals reasoned that "we cannot infer a verdict of not guilty from the
record . . . . The record discloses that the jurors were unable to agree on
the greater offense." Id. at 792. But, the court went on to conclude that
there was insufficient evidence that discharge of the jury was necessary
for the administration of justice. Id. at 794.
The Court of Appeals even more recently implied the distinction at issue
here between implicit acquittal and explicit deadlock. In State v.
Daniels, the Court of Appeals entertained a double jeopardy challenge to
retrial for homicide by abuse where a jury was silent on that charge but
convicted the defendant of second degree murder, which was later
overturned. 124 Wn. App. 830, 836-37, 16-17, 842-44, 31-40, 103
P.3d 249 (2004). The court considered whether the jury implicitly
acquitted the defendant of homicide by abuse when it convicted her of
second degree felony murder. Id. at 842-44, 31-40. In doing so, the
court discussed our opinion in State v. Davis, 190 Wash. 164, 67 P.2d 894
(1937), where we reasoned that "'where an indictment or information
contains two or more counts and the jury either convicts or acquits upon
one and is silent as to the other, and the record does not show the reason
for the discharge of the jury, the accused cannot again be put upon trial
as to those counts.'" Daniels, 124 Wn. App. 843, 34 (quoting Davis, 190
Wash. at 166). The Court of Appeals stressed that this court had reasoned
that because the jury was silent as to some counts and the record did not
show why the jury was discharged, it must be assumed for double jeopardy
purposes that the jury had acquitted the defendant of those charges on
which it was silent. Id. at 843, 35. ("{T}he Davis court also noted
that, had something in the record explained why the court discharged the
jury, the explanation might allow the State to retry Davis on both
counts.") The court then concluded that in its case the jury's silence on
the greater offense was an implicit acquittal. Id. at 843-44, 38-40.
Other jurisdictions have made the distinction for double jeopardy
purposes between silence and express inability to reach a unanimous
resolution. United States v. Allen, 755 A.2d 402, 408-10 (D.C. App. 2000)
(holding that where the jury was unable to agree on the greater offense but
issued a guilty verdict on a lesser offense, the hung jury rule, not the
implied acquittal doctrine, governed and allowed retrial on the greater
offense); United States v. Bordeaux, 121 F.3d 1187, 1193 (8th Cir. 1997)
(holding that "where the jury expressly indicates that it is unable to
reach an agreement on the greater charge, a conviction on a lesser included
offense does not constitute an implied acquittal of the greater offense and
presents no bar to retrial on the greater offense."); People v. Fields, 13
Cal.4th 289, 295-96, 302, 305, 914 P.2d 832, 52 Cal. Rptr. 2d 282 (1996)
(holding that conviction of a lesser included offense was not an implied
acquittal of the greater offense on which the jury expressly deadlocked);4
State v. Martinez, 1995-NMSC-73, 120 N.M. 677, 677-78, 680, 905 P.2d 715
(holding that the jury's inability to agree on attempted murder was not an
implied acquittal on that charge despite its conviction on aggravated
battery); see also Haddix v. State, 827 N.E.2d 1160 (Ind. Ct. App. 2005);
People v. Craig, 38 Cal. App. 4th 1018, 45 Cal. Rptr. 2d 777, 783-84
(1995).5
The Court of Appeals concluded that Linton was impliedly acquitted of first
degree assault when the jury convicted him of second degree assault. We do
not believe that there was an implied acquittal based on silence here
because the court inquired and the jury articulated that it was unable to
agree on the first degree assault charge and the judge then declared the
jury hopelessly deadlocked. But given the unable to agree jury instruction
and the verdict on second degree assault, the trial judge erred by
inquiring into the jury's thinking about the first degree assault charge.6
Neither parties nor judges may inquire into the internal processes through
which the jury reaches its verdict. See Breckenridge v. Valley Gen. Hosp.,
150 Wn.2d 197, 204, 75 P.3d 944 (2003).
The mental processes by which individual jurors reached their respective
conclusions, their motives in arriving at their verdicts, the effect the
evidence may have had upon the jurors or the weight particular jurors may
have given to particular evidence, or the jurors' intentions and beliefs,
are all factors inhering in the jury's processes in arriving at its
verdict, and, therefore, inhere in the verdict itself.
Cox v. Charles Wright Acad., Inc., 70 Wn.2d 173, 179-80, 422 P.2d 515
(1967); see also State v. Ng, 110 Wn.2d 32, 43, 750 P.2d 632 (1988) ("The
individual or collective thought processes leading to a verdict 'inhere in
the verdict' and cannot be used to impeach a jury verdict." (quoting State
v. Crowell, 92 Wn.2d 143, 146, 594 P.2d 905 (1979))). Considerations that
"inhere" in the jury's verdict may not be considered by the court or the
parties. Ayers v. Johnson & Johnson Baby Prods. Co., 117 Wn.2d 747, 768-
70, 818 P.2d 1337 (1991); State v. Marks, 90 Wn. App. 980, 986, 955 P.2d
406 (1998) ("Matters that inhere in the verdict are beyond inquiry."). The
trial judge's inquiry into the verdict is limited to polling members of the
jury to ensure that the verdict read is the actual verdict of each
individual. See 13 Royce A. Ferguson, Jr., Washington Practice: Criminal
Practice and Procedure sec. 4614, at 320-21 (2004); see also Washington
Practice sec. 4617, at 324 ("Public policy forbids inquiring into the
privacy of the jury's deliberations."). Furthermore, "'{Q}uestions from the
jury are not final determinations, and the decision of the jury is
contained exclusively in the verdict.'" Ng, 110 Wn.2d at 43 (quoting State
v. Miller, 40 Wn. App. 483, 489, 698 P.2d 1123 (1985)). "{J}urors' post-
verdict statements regarding matters which inhere in the verdict cannot be
used to attack the jury's verdict." Ng, 110 Wn.2d at 44.
Based on the way the second degree instruction and verdict forms were
written, allowing the jury to choose between acquittal and lack of
resolution on first degree assault before moving to second degree assault,
the jury's disposal of first degree assault is one of those elements that
inheres in its verdict on second degree assault. The jury's resolution on
first degree assault is therefore beyond the realm of inquiry. Where an
unable to agree instruction is used which allows the jury to move on to a
lesser included offense when it acquits or is unable to agree on the
greater charge, and the jury does move on without entering a verdict, the
jury will necessarily remain "silent" on the greater offense. Had the
trial court limited its inquiry into whether each juror agreed with the
verdict as it was stated, the jury would have remained "silent" on first
degree assault. Under the implied acquittal doctrine then, the judge would
have had to conclude that the jury implicitly acquitted Linton of first
degree assault.
IV. CONCLUSION
Where an unable to agree instruction is used and the jury convicts the
defendant of the lesser included offense, it will necessarily remain silent
on the greater offense and therefore implicitly acquit the defendant of the
greater offense. Therefore, we affirm the Court of Appeals' ultimate
holding, based on slightly different reasoning clarifying application of
the implied acquittal doctrine. Because we affirm the Court of Appeals on
implied acquittal of first degree assault, we do not reach Linton's second
argument regarding his conviction on second degree assault barring retrial
on first degree assault, the "same offense" for double jeopardy purposes.
WE CONCUR:
1 In State v. Labanowski, 117 Wn.2d 405, 423, 816 P.2d 26 (1991), this
court held that the 'unable to agree' instruction--directing the jury to
move to a lesser offense if it acquitted the defendant of the greater crime
or if it was unable to agree on the greater crime--was the correct
instruction as between it and one requiring acquittal before moving to the
lesser crime.
2 Although an exceptional sentence was imposed, no Blakely v. Washington,
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), argument has been
made to the court.
3 Linton and amicus curiae Washington Association of Criminal Defense
Lawyers (WACDL) argue that even if we hold that federal case law
interpreting double jeopardy does not bar retrial on first degree assault,
we should find that the Washington Constitution provides greater protection
and prohibits retrial here. This court has repeatedly held that the
Washington double jeopardy clause found in article I, section 9 and the
federal double jeopardy clause in the Fifth Amendment are essentially
identical and afford the same protections. In re Pers. Restraint of Davis,
142 Wn.2d 165, 171, 12 P.3d 603 (2000); State v. Gocken, 127 Wn.2d 95, 102,
896 P.2d 1267 (1995); State v. Ridgley, 70 Wn.2d 555, 556, 424 P.2d 632
(1967); State v. Schoel, 54 Wn.2d 388, 391, 341 P.2d 481 (1959).
Furthermore, we have previously conducted a Gunwall analysis under State v.
Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986), on this issue and concluded
that the Washington Constitution provides no greater protection from double
jeopardy than does the United States Constitution. Gocken, 127 Wn.2d at
107. The arguments made by Linton and WACDL in favor of a different result
here do not persuade us to alter our interpretation of the Washington
double jeopardy clause.
4 But the court found that a state statute went beyond double jeopardy
protections and independently barred retrial on the greater offense.
People v. Fields, 13 Cal.4th at 305-07.
5 This is not an exhaustive discussion of relevant cases from other
jurisdictions.
6 Although defense counsel objected to the State's request that the trial
court ask the jury about the first degree assault charge, Linton abandoned
the argument that the trial court's inquiry was error on appeal. However,
both parties have fully briefed the issue of whether the jury impliedly
acquitted Linton or whether they were hopelessly deadlocked on the first
degree assault charge. The trial court's improper inquiry is critical to
this determination because it ended the jury's silence on the greater
charge. As this court has previously stated, '{c}ourts are created to
ascertain the facts in a controversy and to determine the rights of the
parties according to justice. Courts should not be confined by the issues
framed or theories advanced by the parties if the parties ignore the
mandate of a statute or an established precedent.' Maynard Inv. Co. v.
McCann, 77 Wn.2d 616, 623, 465 P.2d 657 (1970). Here, established
precedent indicates that the trial court's inquiry to the jury was error.
Therefore, it is proper for this court to consider the impact of the trial
court's error on the determination of whether the jury was hopelessly
deadlocked.