GROUNDS FOR RELIEF 

STATE AND FEDERAL DOUBLE JEOPARDY CLAUSES PROHIBIT IMPOSITION OF RCW 10.95.020 “AGGRAVATION OF PENALTY”  FACTORS FOLLOWING CONVICTION OF RCW 9A.32.030(1) MURDER IN THE FIRST DEGREE ENCOMPASSING THE SAME SUBJECT MATTER AGGRAVATING CIRCUMSTANCES USED IN FIRST DEGREE FELONY MURDER CONVICTION.

In a single count. Petitioner was charged with and convicted of two alternative ways of committing the single crime of Murder in the First Degree, to wit: First Degree Premeditated Murder, RCW 9A.32.030(1) (a), and First Degree Felony Murder, RCW 9A.32.030(1) (c), to which the State Supreme Court who is the final arbiter of Washington law has determined to be permissible, cf. , State v. Bowerman, 115 Wn.2d 794, 802 P.2d 116 (1990) :

Count 1 of the fourth amended information charged Bowerman with the single crime of first degree murder. The count alleged two alternative ways of committing that single crime: (1) aggravated premeditated murder, and (2) felony murder. Premeditated murder and felony murder are not separate crimes, They are alternate ways of committing the single crime of first degree murder. State v. Ellison, 36 Wn.App. 564, 574-75, 676 P.2d 521, review denied, 101 Wn.2d 1010 (1984). Where there are alternate ways to commit a crime it is permissible to charge both alternatives in the same count. State v. Scott, 64 Wn.2d 992,993, 395 P.2d 377 (1964). Had Bowerman been rearraigned on the amended information, she would have been rearraigned on both alternate ways of committing the one crime of first degree murder charged in count 1. At that time she would have had a statutory right to plead guilty to first degree murder. She would not have had the right to choose one portion (felony murder) of the charges against her and plead guilty to just that portion of the charge.

The statutory right to plead guilty recognized in State v. Martin, 94 Wn.2d 1, 4, 614 P.2d 164 (1980) cannot be stretched so far as to include a right to plead guilty to only one alternative means out of several that are charged. Where an information alleges more than one means of committing a single crime, the right to plead guilty is a right to plead guilty to the one crime charged.

When as here, a single crime is alleged in a single count, all elements within the “to convict” instruction of said single crime are subject to double jeopardy prohibitions and protections, see also, RCW 10.43.050 Acquittal at bar.

Whenever a defendant shall be acquitted or convicted upon an Indictment or Information charging a crime consisting of different degrees, he or she cannot be proceeded against or tried for the same crime in another degree nor for an attempt to commit such crime of any degree thereof.

State v. Allen, No, 48384-0-II (2017):

“ ‘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. Fuller, 185 Wn.2d 30, 33-34, 367 P.3d 1057 (2016) (quoting State v. Linton, 156 Wn.2d 777, 783, 132 P.3d 127 (2006) (Plurality opinion)).

In this case the jury returned a guilty verdict for each of the alternate ways of committing First Degree Murder, see Jury Verdict Forms:

Verdict Form A

We, the jury, find the defendant, Taylor Tom Conley, guilty of the crime of premeditated murder in the first degree.

Verdict Form B

We the jury, find the defendant, Taylor Tom Conley, guilty of the crime of felony murder in the first degree.

The trial court instructed the jury that conviction could rest on robbery or residential burglary for First Degree Felony Murder and robbery or residential burglary for the aggravating factors essential for imposition of the aggravated penalty of RCW 10.95.020, see:

RCW 9A.32.030 (1) Murder in the First Degree.

            (a) With premeditated intent.

            (b) Extreme Indifference to human life.

            (c) Felony Murder

Jury Instruction No, 17

To convict the defendant of the alternative crime of felony murder in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt.

(1) That on or about March 31, 2006, Brian Swehla was killed;

(2) That the defendant was committing or attempting to commit the crime of either :

            (a) Robbery; or

            (b) Residential Burglary.

(3) That the defendant or an accomplice caused the death of Brian Swehla in the course of or in furtherance of such crime or in immediate flight from such crime;

(4) That Brian Swehla was not a participant in the crime; and

(5) That the acts occurred in the State of Washington.

Special Jury Verdict Forms

Question:

Has the State proven the existence of the following aggravating circumstance beyond a reasonable doubt?

That the murder was committed in the course of, in furtherance of, or in immediate flight from the crime of robbery?

Answer: Yes.

Question:

Has the State proven the existence of the following aggravating circumstance beyond a reasonable doubt?

That the murder was committed in the course of, in furtherance of, or immediate flight from the crime of residential burglary.

Answer: Yes.

The jury further found that Petitioner “Conley or an accomplice armed with firearm at the time of the commission of the crime of felony murder in the first degree… as defined in Instruction 16,” which reads:

A person commits the crime of felony murder in the first degree when he are an accomplice commits or attempts to commit the crime of robbery or residential burglary and in the course of or in furtherance of such crime or immediate flight from such crime he or another participant causes the death of a person other than one of the participants.

Petitioner was convicted of the single crime of First Degree Murder by vehicle, in part, of conviction for felony murder which requires identical element of “committed in the course of, in furtherance of, or in immediate flight from” a felony, that is required by the aggravating factors of RCW 10.95.02.; thereby, double jeopardy prohibits the second punishment for the same “committed in the course of, in furtherance of, or in immediate flight from” the crime of robbery and/or residential burglary, which is in violation of the Fifth Amendment to the United States Constitution, see State v. Daniels, 165 Wn.2d 627, 200 P.3d 711 (2009):

The First Amendment to the United States Constitution declares, “no person shall…be subject for the same offense to be twice put in jeopardy of life or limb.” Jeopardy in this content refers to being subject to the potential of punishment for an act, not the actual punishment for the act, see Price v. Georgia, 398 U.S. 323, 326, 90 S.Ct. 1257, 26 L.Ed.2d 300 (1970) (quoting United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 4l L.Ed.300 (1896)

Southern Union Co. v. United States, 567 U.S. 343, 132 S.Ct. 2344, 183 L.Ed.2d 318 (2012)

The Sixth Amendment reserves to juries the determination of any fact, other than the fact of a prior conviction, that increased a criminal defendant’s maximum potential sentence. The same rule applies to sentences of criminal fines.

Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 82 L.Ed. 917 (1938) (Double Jeopardy Clause “prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense.

In other words, Washington Supreme Court has determined that under Washington Law, Felony Murder is one of the ways to commit the single crime of First Degree Murder; Petitioner was convicted of both of charged ways to commit First degree Murder, one of which said ways to commit First Degree Murder, i.e., Felony Murder that requires a just finding of “committed int eh course of, in furtherance of, or in immediate flight from”  an identified felony;  prohibiting the State from imposing a second punishment for said element to enhance the punishment for the other ways to commit the single crime of First Degree Murder; in part, when as here, the unobjected jury instruction became the law of the case, cf., State v. Irizarry, 111 Wn.2d 591, 763 P.2d 432 (1988):

In State v Mak, 105 Wn.2d 692, 718 P2d. 407, cert. Denied, 479 U.S. 995, 107 S.Ct 599, 93L.Ed.2d 599 (1986), instructions on felony murder as a lesser included offense where given to the jury by the trial court in a case involving aggravated murder in the first degree. As we there held, this did not constitutes reversible error because it was the defendant who requested these instructions. As we pointed out in that connection, the lesser included offense instruction not having been excepted to at trail by the defendant, became the law of the case.

In this case, the jury instructions were not objected to, and the “to convict” instructions for First Degree Felony Murder contained the exact elements as the aggravating factors of RCW 10.95.020; thereby, under Washington State’s law of the case placed the elemental “in the course of, in furtherance of, or in immediate flight from the crime” of robbery and residential burglary as elements that the State must prove beyond a reasonable doubt, cf., State v. Bowerman, 115 Wn.2d 794, 802 P.2d (1990):

Count 1 of the fourth amended information charged Bowerman with the single crime of first degree murder. The count alleged two alternative ways of committing that single crime: (1) aggravated, premeditated murder, and (2) felony murder. Premeditated murder and felony murder are not separate crimes. They are alternative ways of committing the single crime of first degree murder. State v. Ellison, 36 Wn.App. 564, 574-75, 676 P.2d 531, review denied, 101 Wn.2d 1010 (1984). Where there are alternate ways to commit a crime it is permissible to charge both alternatives in the same count. State v. Scott, 64Wn.2d 992, 993, 395 P.2d 377 (1964). Where an information alleges more than one means of committing a single crime, the right to please guilty is a right to plead guilty to the one crime charged.

State v. Johnson, 113 Wn.App. 482,_P.2d_(2002):

The court found that alternate charges of intentional murder and felony murder constituted a single offense and properly entered judgment and sentenced Johnson for only one crime.

State v. Ellison, 36 Wn.2d App. 564, 66 P.2d 531, review denied, 101 Wn.2d 1010 (1984):

When a defendant is charged under a criminal statute that describes a single offense committable in more than one way, rather than separate and distinct offenses, jury unanimity is unnecessary as to the means but only as to the commission of the offense….Here, Ellison was charge with premeditated murder, RCW 9A.32.020 (1) (a), and felony murder, RCW 9A.32.030 (1)(c), both of which constitute first degree murder. See RCW 9AAS.32.030.

State v. Wright, 165 Wn.2d 783, 203 P.3d 1027 (2009):

A defendant charged and tried under multiple statutory alternatives experience the same jeopardy as one charged and tried on the single theory. The defendant is in jeopardy of a single conviction and subject to a single punishment, whether the State charges a single alternative or several.

State v. Fuller, 185 Wn.2d 30, 367 P.3d 1057 (2016):

For purposes of this double jeopardy analysis, it does not matter that the State charged Fuller with alternative means of committing the same crime in separate counts because ultimately, he was charged with one offense.

In addition to the law of the case making the elements of First Degree Felony Murder being “to convict” elements of the single crime of Murder in the First Degree, a jury finding of the elements are an essential condition precedent to any finding of the RCW 10.95.020 aggravating factors, see State v. Fortune, 77 Wn.App. 628, 893,P.2d 670 (1995) affirmed 128 Wn.2d 464, 909 P.2d 930 (1996):

Before a penalty for aggravated murder can be imposed, there must first be jury unanimity as to the premeditated means of committing first degree murder, under Washington law, therefore, it is not possible for defendant to receive a sentence for aggravated first degree murder.

In this case, the “to convict” instruction of felony murder was an integral way for the jury to find defendant guilty of the single crime of Murder in the First Degree, as clearly and conclusively evidenced in the foregoing, mandating application of Washington State’s law of the case doctrine, State v. Hickman, 135 Wn.2d 97, 954 P.2d 900 (1998) (“We conclude elements in the “to convict” instruction not objected to become the “law of the case” which the State must prove beyond a reasonable doubt to prevail”) ; State v. Sinrud, 2017 Wash.App. Lexis 2279 (2017) (same) ; State v. France, 180 Wn. 809, 329 P.3d 864 (2014) ; State v. Witherspoon, 180 Wn.2d 875, 329 P.2d 888 (2014) ; State v. Johnson, 188 Wn.2d 742, 399 P.3d 507 (2017):

The United States Supreme Court’s decision in Masacchio v. United States, rejecting the law of the case argument concerning sufficiency of the evidence to convict did not supersede the Washington Supreme Court’s law of the case precedent because the doctrine of Washington developed through the common-law and State procedural rules. The State was required to prove the non-statutory element that the defendant specifically intended to steal and access device because that element was included in the “to convict” instruction. The Washington Supreme Court is the final arbiter of Washington Law.

There can be no legitimate question, RCW aggravating factors are subject to the double jeopardy clause of the State and Federal constitutions, see State v. Allen, No. 84384-0-II (2017):

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.

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. 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 154, 892, P.2d 29 (1995) (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.26 714, 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.

The United States Supreme Court was cognizant of the fact that different sentencing schemes exist in different jurisdictions. None of these cases has overruled or altered our prior jurisprudence in this area. Premeditated murder in the first degree remains a separate crime from premeditated murder int the first degree with aggravating circumstances. The aggravating circumstances are the functional equivalent of elements that must be submitted to the jury and must be proved by the State beyond a reasonable doubt.

“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. Fuller, 185 Wn.2d 30, 367 P.3d 1057 (2016).

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