Opinion
Nos. 32924-7-II; 32930-1-II.
October 31, 2006.
Appeals from a judgment of the Superior Court for Clark County, No. 00-1-01214-4, Roger A. Bennett, J., entered February 18, 2005.
Counsel for Appellant(s), Lisa Elizabeth Tabbut, Attorney at Law, 1402 Broadway St, Longview, WA, 98632-3714.
Counsel for Respondent(s), Michael C. Kinnie, Attorney at Law, 1200 Franklin, Po Box 5000, Vancouver, WA, 98666-5000.
Affirmed by unpublished opinion per Houghton, C.J., concurred in by Quinn-Brintnall and Van Deren, JJ.
Rodney James Harris appeals his conviction of first degree manslaughter, arguing that the trial court erred in denying his motion to dismiss under the "ends of justice" exception to the mandatory joinder rule CrR 4.3.1(b)(3). He raises other issues pro se. We affirm.
FACTS
On July 6, 2000, the State charged Harris with second degree murder or, in the alternative, second degree felony murder with a firearm enhancement. Second degree assault served as the predicate felony for the alternative charge. The State also charged him with first degree unlawful firearm possession. On January 3, 2001, the State filed an amended information identical to the information filed on July 6, 2000. On January 11, 2001, a jury convicted him of first degree unlawful firearm possession, but it could not reach a verdict on the murder charge. The trial court declared a mistrial on the murder charge.
On January 19, 2001, the State filed a second amended information charging Harris with second degree felony murder with a firearm enhancement. Second degree assault again served as the predicate offense. A jury convicted him of second degree felony murder with a firearm enhancement.
On appeal, we reversed Harris's conviction because he received ineffective assistance of counsel. State v. Harris, 122 Wn. App. 547, 90 P.3d 1133 (2004). In footnote two of our opinion, we instructed that "[o]n remand, the State will not be able to charge Harris with felony murder based on assault. In re Pers. Restraint of Andress, 147 Wn.2d 602, 616, 56 P.3d 981 (2002) (assault is not a predicate felony for second degree felony murder)." Harris, 122 Wn. App. at 555 n. 2. We issued a mandate on November 29, 2004, remanding Harris's case to the trial court.
On December 20, 2004, the State charged Harris with one count of second degree murder, with a firearm enhancement or, in the alternative, one count of first degree manslaughter. He moved to dismiss both counts raising joinder, speedy trial, and double jeopardy arguments. The trial court denied his motion to dismiss on all grounds.
Following its denial of Harris's motion to dismiss, the trial court held a bench trial and convicted him of first degree manslaughter with a firearm enhancement. He appeals.
Our commissioner affirmed the judgment and sentence but a panel of judges modified the commissioner's ruling, setting it for argument.
ANALYSIS Mandatory Joinder Rule, CrR 4.3.1(b)(3)
Harris first contends that the trial court erred in denying his motion to dismiss under the "ends of justice" exception to the mandatory joinder rule, CrR 4.3.1(b)(3). He asserts that the trial court acted without legal authority when it extended the "ends of justice" exception to his case under State v. Ramos, 124 Wn. App. 334, 101 P.3d 872 (2004), because, he claims, Division One wrongly decided Ramos.
Alternatively, he argues that if Ramos was properly decided, the trial court abused its discretion when applying Ramos by ruling that all felony murder cases affected by Andress are automatically subject to the "ends of justice" exception. Appellant's Br. at 17-18.
CrR 4.3.1(b)(3) (the mandatory joinder rule) requires that the State join related offenses for trial. Ramos, 124 Wn. App. at 338. Under CrR 4.3.1(b)(3), a defendant who has been tried for one offense may move to dismiss a later charge for a related offense and that motion must be granted unless the court finds that the State lacked information or evidence at the time of the first trial or unless the court determines that "the ends of justice would be defeated if the motion were granted." In a situation where the mandatory joinder rule clearly applies, the "ends of justice" exception to CrR 4.3.1(b)(3) permits the State to bring new charges of manslaughter against a defendant whose felony murder conviction was vacated as the result of Andress. State v. Wright, 131 Wn. App. 474, 487, 127 P.3d 742 (2006) (citing Ramos, 124 Wn. App. 334).
In Ramos, Division One analyzed whether the "ends of justice" exception to CrR 4.3.1(b)(3) allows the State to file new charges where the Andress decision compels the court to vacate a second degree felony murder conviction where second degree assault was the predicate felony. Ramos, 124 Wn. App at 336-38. The Ramos court concluded that the exception would apply where there are extraordinary circumstances that are extraneous to the action or that go to the regularity of the proceedings. 124 Wn. App. at 340-41. Therefore, the Ramos court held that the "ends of justice" exception may apply when truly unusual circumstances, which are outside of the State's control, arise, such as when Andress mandated the vacation of a conviction obtained before Andress was decided. Ramos, 124 Wn. App. at 341-43. Finally, the Ramos court held that "[o]ther factors may be relevant to determining the justice of further proceedings, and whether the ends of justice would be defeated by dismissing [the charges against the defendants] is, in the final analysis, a determination for the trial court." 124 Wn. App. at 343.
Harris argues that the trial court acted without legal authority when in relied on Ramos because Ramos was wrongly decided. He maintains that "Washington's felony murder rule was a minority view among states . . . [and] was the subject of frequent legal challenges as pointed [out in] footnote 27 in the Ramos opinion." Appellant's Br. at 16-17. Therefore, he argues, Andress was not an extraordinary change because the State should have been aware that the felony murder rule was vulnerable and subject to a successful challenge.
Harris's argument fails because the Ramos court considered the long history of felony murder in our courts and legislature and determined that "[f]or the Court to abandon an unbroken line of precedent on a question of statutory construction after more than 25 years is highly unusual, and the decision to do so was certainly extraneous to the prosecutions of [the defendants]. . . . The fact that the convictions thus obtained must now be vacated is the result of extraordinary circumstances outside the State's control." 124 Wn. App. at 342. We disagree that Ramos was wrongly decided and, therefore, the trial court did not abuse its discretion in relying on the Ramos decision.
Harris also argues that the trial court abused its discretion when it relied on Ramos, arguing that the trial court ruled that all felony murder cases affected by Andress are automatically subject to the "ends of justice" exception. He contends that the trial court failed to "truly" use its discretion to determine whether the facts of his case warranted the application of the "ends of justice" exception, as Ramos required.
Harris's arguments do not persuade us. After hearing argument from Harris and the State regarding his motion to dismiss, the trial court concluded that the mandatory joinder rule had been violated. It then went on to state:
I think Ramos recognizes that the Court has some discretion to determine whether or not the interests of justice would be thwarted by a dismissal based on lack of mandatory joinder under unusual and extraordinary circumstances.
Ramos stands for the proposition that the Andress decision is an unusual and extraordinary circumstance. I don't know if the Ramos decision will hold up on appeal or not, but it is the law as far as what exists today in our appellate circuits, appellate divisions, and therefore I'm going to make the same determination as was made in Ramos, that the Court does have the discretion to deny a motion to dismiss for violation of mandatory joinder.
I will allow the State to proceed on its newly filed Information. . . .
Report of Proceedings at 39-40.
Contrary to Harris's argument, the trial court did not rule that all felony murder cases affected by Andress are automatically subject to the "ends of justice" exception. Instead, the court acknowledged that Ramos recognized the discretion the trial court had to determine whether the ends of justice would be defeated if a motion to dismiss were granted and whether the Andress decision was an unusual and extraordinary circumstance.
Harris additionally argues that the trial court abused its discretion when it denied his motion to dismiss without indicating on the record what unique factors applicable to his case it was relying on in using its discretion. Nothing in Ramos indicates that the trial court is under this obligation. Instead, the trial court's discretion to determine the justice of further proceedings includes determining whether other factors may be relevant. Ramos, 124 Wn. App. at 343.
Here, it was within the trial court's discretion to decide if factors other than the Andress decision were relevant to the application of the "ends of justice" exception. The trial court did not abuse its discretion.
Pro se, Harris further contends that the trial court erred in denying his motion to dismiss under the "ends of justice" exception because the State amended its information to include first degree manslaughter. Statement of Additional Grounds at 3-4. He primarily relies on State v. Carter, 56 Wn. App. 217, 783 P.2d 589 (1989), where the State amended an information submitted to the trial court after a hung jury in a previous trial. The amended information in Carter involved a related offense for the purposes of former mandatory joinder rule, CrR 4.3(c)(3) (1989). 56 Wn. App. at 218. In Carter, the State could not establish extraordinary circumstances to invoke the "ends of justice" exception to the mandatory joinder rule. 56 Wn. App. at 223.
Statement of Additional Grounds (SAG), RAP 10.10 Due Process
Pro se, Harris claims that his due process rights have been violated because the trial court allowed the State to benefit from a violation of the mandatory joinder rule. His argument does not address the application of the "ends of justice" exception to his case. Instead, he incorrectly cites City of Seattle v. Patu, 147 Wn.2d 717, 58 P.3d 273 (2002) (holding that a party could not request an instruction at trial and then complain on appeal that the instruction was defective), and refers to the invited error doctrine. His argument lacks merit and we do not address it further.
Speedy Trial Rights
Harris also claims a violation of his speedy trial rights under former CrR 3.3 (2001). Former CrR 3.3(d) provided in pertinent part:
(3) Mistrial and New Trial. If before verdict the superior court orders a mistrial, the defendant shall be brought to trial not later than 60 days after the oral order of the court. . . .
(4) Trial After Appeal or Stay. If a cause is remanded for trial after an appellate court accepts review or stays proceedings, the defendant shall be brought to trial not later than 60 days after that appearance by or on behalf of the defendant in superior court . . . which next follows receipt by the clerk of the superior court of the mandate. . . .
On January 11, 2001, the trial court declared a mistrial on the second degree murder charge. Within 60 days of this declaration, on March 6, 2001, the State brought Harris to trial, and a jury convicted him of second degree felony murder with a firearm enhancement. On November 29, 2004, we issued the mandate reversing his second degree felony murder conviction and remanding to the trial court for a new trial. On December 22, 2004, he made his first appearance in the trial court following the remand. Within 60 days of this first appearance on February 15, 2005, a judge in a bench trial convicted him of first degree manslaughter.
Harris also asserts that the State purposefully and oppressively delayed charging him with first degree manslaughter. He further asserts that this delay was "presumptively prejudicial." He cites Doggett v. United States, 505 U.S. 647, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992) in support of his argument. But Doggett is factually distinguishable as it dealt with a defendant whose indictment was 8½ years after his arrest. Harris's speedy trial arguments fail.
Double Jeopardy
Harris next claims that double jeopardy bars retrial on the charges of second degree murder and first degree manslaughter.
The fifth amendment to the United States Constitution assures that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." The double jeopardy clause in article I, section 9 of the Washington Constitution is coextensive with the federal double jeopardy clause. State v. Gocken, 127 Wn.2d 95, 109, 896 P.2d 1267 (1995). The federal double jeopardy clause bars retrial if three elements are met: (1) jeopardy previously attached, (2) jeopardy previously terminated, and (3) the defendant is again in jeopardy for the same offense. State v. Corrado, 81 Wn. App. 640, 645, 915 P.2d 1121 (1996). Once jeopardy attaches, it terminates when a defendant is expressly or implicitly acquitted or a conviction becomes unconditionally final. State v. Hescock, 98 Wn. App. 600, 604-05, 989 P.2d 1251 (1999).
But double jeopardy does "not bar retrial after a jury is unable to reach a verdict on a charge because there has been no final adjudication on the charge." State v. Ahluwalia, 143 Wn.2d 527, 541, 22 P.3d 1254 (2001). In addition, double jeopardy does not bar retrial when a defendant successfully appeals a conviction, so long as the reversal was not for insufficiency of the evidence. State v. Brown, 127 Wn.2d 749, 756-57, 903 P.2d 459 (1995).
Harris's first trial resulted in a hung jury on the second degree murder charge. The trial court declared a mistrial, and the State filed a timely information for his second trial. After his second trial, he successfully appealed his conviction of second degree felony murder on grounds other than insufficiency of evidence. Therefore, jeopardy did not terminate on his second degree murder charges, and double jeopardy did not bar his prosecution on the charges of second degree murder and first degree manslaughter.
Equal Protection of the Law
Finally, Harris claims that the trial court's application of the "ends of justice" exception denied him equal protection of the law. He argues that he is similarly situated to all other defendants whose second degree felony murder convictions with second degree assault as the predicate crime were reversed and, following Andress, who could not be charged with the same offense on remand. He contends that the trial court treated him differently from other members of his class because, in his case, the trial court applied the "ends of justice" exception to the mandatory joinder rule and the trial courts in the other cases he cites did not. But he fails to demonstrate that he belonged to the appropriate subset of defendants to support his disparate treatment argument.
When evaluating an equal protection claim, we must first determine whether the individual claiming the violation is similarly situated with other persons. State v. Osman, 157 Wn.2d 474, 484, 139 P.3d 334 (2006). The individual making the claim must establish that he received disparate treatment because of membership in a class of similarly situated individuals and that the disparate treatment was the result of intentional or purposeful discrimination. Osman, 157 Wn.2d at 484.
Here, in order to demonstrate that the trial court denied him equal protection of the law, Harris must demonstrate that he belonged to a subset of defendants (1) whose second degree felony murder conviction with second degree assault as the predicate felony were reversed, (2) who could not be charged on remand with the same offense, (3) who were charged with a related offense on remand that should have been joined with the second degree felony murder charge at the previous trial, and (4) who moved for dismissal of the new charge under the mandatory joinder rule. In not one of the cases Harris cites were these circumstances present: State v. Douglas, 128 Wn. App. 555, 116 P.3d 1012 (2005) (dismissing felony murder charge under Andress before trial and reversing first degree manslaughter conviction due to instructional error); State v. Daniels, 124 Wn. App. 830, 103 P.3d 249 (2004) (reversing second degree felony murder conviction under Andress and remanding to trial court with directions to retry Daniels only on second degree murder based on the predicate offense of criminal mistreatment), review pending, 2005 Wash. LEXIS 807 (2005); State v. Gamble, 118 Wn. App. 332, 72 P.3d 1139 (2003) (reversing second degree felony murder conviction under Andress and remanding to the trial court with directions that it enter a verdict of guilty on the lesser included offense of first degree manslaughter), aff'd in part and rev'd in part, 154 Wn.2d 457, 114 P.3d 646 (2005); State v. Hughes, 118 Wn. App. 713, 77 P.3d 681 (2003) (reversing second degree felony murder conviction under Andress and remanding to the trial court with directions to enter a verdict of guilty on the lesser included offense of second degree assault), review denied, 151 Wn.2d 1039 (2004). Harris's argument fails.
Affirmed.
A majorityofthe panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
QUINN-BRINTNALL, J. and DEREN, J., concur.