Superior Court of Pierce County. Superior Court Docket No. 95-1-03481-2. Date Filed In Superior Court: August 28, 1995. Superior Court Judge Signing: Donald Thompson.
Written By: Morgan, J, Concurred IN By: Houghton, Acj, Fleisher, Jpt
MORGAN, J. -- George Lewis Corrado was tried without a charge. The jury found him not guilty of attempted first degree murder, but guilty of the lesser included offense of attempted second degree murder. The primary issue is whether he can be retried for one or both crimes. We hold he can be retried for attempted second degree murder, but not for attempted first degree murder.
On July 30, 1993, Corrado was jailed for shooting Dorothy Gardner. On August 2, 1993, the State charged him with attempted murder in the first degree. On September 24, 1993, the State moved to dismiss without prejudice, saying it had been unable to locate Gardner. The trial court granted the motion and dismissed without prejudice. Corrado remained in jail on other matters, and Gardner was soon found.
On October 25, 1993, Corrado was brought back to court. Although the State had not filed a new charge, the arraignment judge ordered that trial commence on November 1.
On November 1, at the beginning of trial, the trial judge advised counsel in open court that the court file did not contain a charge. The prosecutor said he would file one, but he never did.
After both parties had presented their evidence, the judge instructed the jury on attempted first degree murder and the lesser included offense of attempted second degree murder. The judge also instructed the jury that it could convict of attempted first degree murder; acquit of attempted first degree murder but convict of attempted second degree murder; or acquit entirely. The jury acquitted of attempted first degree murder, but convicted of attempted second degree murder.
Corrado appealed the conviction for attempted second degree murder. He claimed the State's failure to file a charge "deprived the [trial] court of jurisdiction" and rendered the conviction "void."*fn1
In July 1995, in Corrado I,*fn2 we ruled that because the State had failed to file a charge, the superior court had acted without jurisdiction and its acts were "void." We ordered Corrado's release unless, forthwith, he was properly charged and detained. We were not concerned with the acquittal for attempted first degree murder, because it had not been cross-appealed by the State.
A week after our ruling, the State filed an information charging attempted second degree murder. Shortly thereafter, it filed an amended information charging attempted first degree murder. Corrado moved to dismiss the amended information, arguing (1) double jeopardy, (2) violation of his constitutional right to speedy trial, and (3) governmental misconduct in violation of CrR 8.3(b). Agreeing with the first argument, but rejecting the other two, the trial court dismissed the action. The State appealed, and Corrado cross-appealed.
The State argues that Corrado was not in jeopardy during the previous trial because we held, in Corrado I, that the trial court "lacked jurisdiction"*fn3 for purposes of state procedural law. Thus, it says, it is entitled to retry him for attempted first degree murder. Corrado argues that he cannot be retried at all, even for attempted second degree murder. We begin by analyzing and applying the usual
elements of double jeopardy. Then, we discuss whether the State's jurisdictional argument alters our analysis.
The double jeopardy clause guarantees that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb".*fn4 Generally, it bars trial if three elements are met: (a) jeopardy previously attached,*fn5 (b) jeopardy previously terminated,*fn6 and (c) the defendant is again in jeopardy "for the same offense."*fn7 The first two elements determine "former" jeopardy, which is a prerequisite to "double" jeopardy.*fn8 When "former" jeopardy is assumed or established, the third element determines "double" jeopardy.
Each element furthers a different policy or idea. The attachment element arises from the idea that a defendant is not in jeopardy until he or she is actually at risk of conviction; in other words, jeopardy should "attach" when an accused is at risk, but not otherwise.*fn9 The termination element arises from the idea that the State should have one complete opportunity to convict; in other words, jeopardy should "terminate" when the State has had--but not
before the State has had--one full and fair opportunity to prosecute.*fn10 The same offense element arises from the idea that a defendant should not have to run the same "gauntlet" more than once,*fn11 and, correspondingly, that the State should not have more than one opportunity to convict a defendant for the same crime.*fn12
As a general rule, jeopardy attaches in a jury trial when the jury is sworn, and in a bench trial when the first witness is sworn.*fn13 This may not be true, however, when the trial court "lacks jurisdiction." We consider this jurisdictional exception more fully below.
As a general rule, jeopardy terminates with a verdict of acquittal.*fn14 Thus, "a verdict of acquittal . . . is a bar to a subsequent prosecution for the same offense,"*fn15 and an acquitted defendant may not be retried even when "the acquittal was based upon an egregiously erroneous foundation."*fn16
Insufficient evidence is equivalent to an acquittal,*fn17 because no rational trier could find all essential elements of the crime charged.*fn18
As a general rule, jeopardy terminates with a conviction that becomes unconditionally final,*fn19 but not with a conviction that the defendant successfully appeals.*fn20 The United States Supreme Court has "expressly rejected the view that the double jeopardy provision prevents a second trial when a conviction has been set aside;" instead, it has "effectively formulated a concept of continuing jeopardy that has application where criminal proceedings against an accused have not run their full course."*fn21 The result is that the double jeopardy clause "'imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside,'"*fn22 and that a defendant's "successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence . . . poses no bar to further
prosecution on the same charge."*fn23 "To require a criminal defendant to stand trial again after he has successfully invoked a statutory right of appeal to upset his first conviction is not an act of governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect,"*fn24 and "society would pay too high a price 'were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.'"*fn25
Incidentally, jeopardy may or may not terminate when a trial ends without a verdict.*fn26 For example, it will terminate when a mistrial is declared without reason,*fn27 but not generally when a mistrial is due to the defendant*fn28 or a hung jury.*fn29
Once jeopardy has attached and terminated, the "same elements test," also known as the Blockburger test,*fn30 determines whether a defendant presently faces jeopardy "for the ...