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State v. Allen

Court of Appeals of Washington, Division 2

December 19, 2017

STATE OF WASHINGTON, Petitioner,
v.
DARCUS DEWAYNE ALLEN, Respondent.

          Melmck, J.

         At issue in this case is whether the trial court properly dismissed the State's allegations of aggravating circumstances under chapter 10.95 RCW on double jeopardy grounds. The State charged Darcus DeWayne Allen with four counts of premeditated murder in the first degree and alleged two statutory aggravating circumstances under RCW 10.95.020 (aggravating circumstances).[1] The jury unanimously found that the State had not proved the aggravating circumstances beyond a reasonable doubt, but found Allen guilty of the murder charges.

         After the Supreme Court reversed Allen's convictions, State v. Allen, 182 Wn.2d 364, 341 P.3d 268 (2015), the State filed the same aggravating circumstances it had previously filed and which the jury found had not been proved beyond a reasonable doubt.[2]

         The trial court granted Allen's motion to dismiss the aggravating circumstances and subsequently denied the State's motion for reconsideration. We granted the State's motion for discretionary review and affirm the trial court.

         FACTS

         The State charged Allen with four counts of premeditated murder in the first degree with aggravating circumstances. A jury found Allen guilty of the murder charges, but found that the State had not proved the aggravating circumstances beyond a reasonable doubt.

         The trial court individually polled each juror. It asked each juror, "Is this your verdict?" and "Is it the verdict of the jury?" Clerk's Papers at 148. Every juror answered in the affirmative. The trial court imposed an exceptional sentence above the standard range for the crime of premeditated murder in the first degree. Allen appealed. His convictions were reversed based on prosecutorial misconduct. Allen, 182 Wn.2d at 387.

         On remand, the State did not seek the death penalty, but it did reallege the same aggravating circumstances that the jury had previously found had not been proved beyond a reasonable doubt.

         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, 186 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. The court entered an order granting Allen's motion to dismiss the aggravating factors. The trial court then denied the State's motion for reconsideration.

         We granted the State's motion for discretionary review as to whether or not the prohibition against double jeopardy barred the State from retrying Allen on the aggravating circumstances. Because the jury's unanimous finding on the aggravating circumstances is an acquittal on them, we conclude the State cannot retry Allen on them. We affirm the trial court.

         ANALYSIS[3]

         A number of separate issues are presented in this case. Although they are intertwined, each must be analyzed separately. The ultimate issue we must decide is whether the jury's affirmative finding that the State had not proved the aggravating circumstances beyond a reasonable doubt is an acquittal and double jeopardy bars a retrial on them. We conclude it was an acquittal on the aggravating circumstances and double jeopardy bars a retrial on them.

         I. Aggravating Circumstances Are Not Elements

         The State argues that the trial court erred by treating the aggravating circumstances in RCW 10.95.020 as elements of the charged crime because it is well-settled Washington law that aggravating circumstances relate to sentencing and are not elements of the offense. We agree with the State that the aggravating circumstances are not elements of the crime of premeditated murder in the first degree with aggravating circumstances. However, because they are the functional equivalent of elements, we disagree with the State that the trial court erred by treating them as such.

         Chapter 10.95 RCW sets forth the procedures and penalties for premeditated murder in the first degree with aggravating circumstances. If the State charges a defendant with premeditated murder in the first degree, it can also file one or more statutory aggravating circumstances. State v. Thomas, 166 Wn.2d 380, 387, 208 P.3d 1107 (2009). If aggravating factors are filed, a jury[4]determines whether the State has proved both the substantive crime and the aggravating circumstance(s). RCW 10.95.050. Only if the jury finds that the State has proved both the substantive crime and the aggravating circumstance(s) beyond a reasonable doubt at the guilt phase will a special sentencing hearing occur. RCW 10.95.050. At the sentencing hearing, the jury will determine whether there are sufficient mitigating circumstances to merit leniency. Depending on the answer, a defendant is sentenced either to death or to life imprisonment without the possibility of release or parole. RCW 10.95.030, .080. If the jury does not find aggravating factors, the defendant is sentenced for the crime of premeditated murder in the first degree.

         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.[5] 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) (internal quotation marks omitted) (quoting State v. Kincaid, 103 Wn.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, 166 Wn.2d at 387-88 (quoting State v. Yates, 161 Wn.2d 714, 758, 168 P.3d 359 (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.

         II. Aggravating Circumstances Are the Functional Equivalent of Elements

         Our courts have consistently ruled that aggravating circumstances enhancing premeditated murder in the first degree are not elements. Kincaid, 103 Wn.2d at 307-10. But the United States Supreme Court has held in numerous cases that factors that raise the penalty for a crime, other than a fact of conviction, are the functional equivalent of elements. In other words, they are akin to elements, must be submitted to a jury, and must be proved beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). None of these cases changed the statutory process utilized in chapter 10.95 RCW. None of these ...


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