State v. Eggleston

187 P.3d 233

164 Wn.2d 61

STATE of Washington, Respondent, v. Brian Thomas EGGLESTON, Petitioner.

No. 77756-0.

Supreme Court of Washington, En Banc.

Argued October 9, 2007.

Decided July 10, 2008.

Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, WA, for Petitioner.

Pierce County Prosecutor's Office, John Michael Sheeran, Kathleen Proctor, Tacoma, WA, for Respondent.

MADSEN, J.

¶ 1 Brian Eggleston has been tried three times for Deputy John Bananola's murder. The first trial ended in a mistrial. In the second, the jury expressly found Eggleston not guilty of first degree murder but found him guilty of second degree murder. Using a special verdict form, the jury found Eggleston had not knowingly killed a police officer. Following an appeal, the conviction was vacated based on a number of trial errors. Eggleston was tried a third time. During the third trial, the' State argued Eggleston knowingly killed a police officer. He was again convicted of second degree murder, and the trial court judge imposed an exceptional sentence because the court found Eggleston knowingly killed a police officer. Eggleston sought review on a number of issues, including whether double jeopardy precludes his second conviction and whether the State can impanel a new sentencing jury under former RCW 9.94A.537 (2005). We hold that the double jeopardy clause did not prevent Eggleston's retrial on the "law enforcement" aggravating factor and affirm the Court of Appeals. We decline to consider whether the State can seek an exceptional sentence on remand because that issue is not ripe.

FACTS

¶ 2 On the morning of October 16, 1995, Pierce County sheriffs deputies raided the home of Brian Eggleston pursuant to a validly issued search warrant. Clerk's Papers (CP) at 438. When the sheriffs deputies entered the home, a firefight erupted. In the course of this fight, Deputy Bananola was shot several times and killed and shots were fired at other deputies, including Deputy Warren Dogeagle. The deputies shot Eggleston several times as well. When the deputies subdued Eggleston, they searched the home and found several guns and controlled substances. Eggleston has since been tried three times for the events of that morning.

Eggleston's First Trial

¶ 3 The State charged Eggleston by third amended information on February 24, 1997. CP at 1102-07. The information charged Eggleston with aggravated murder in the first degree, assault in the first degree, unlawful delivery of a controlled substance (marijuana), unlawful possession of a controlled substance with intent to deliver (marijuana), unlawful delivery of a controlled substance (marijuana), and unlawful possession of a controlled substance (mescaline). The jury found Eggleston guilty of assault and all drug charges. But, the jury was unable to reach a verdict on the first degree murder charge. The trial court sentenced Eggleston on June 13, 1997 on the drug and assault convictions within the standard range. CP at 1204-11.

Eggleston's Second Trial

¶ 4 On May 15, 1997, the State scheduled a new trial for Eggleston on aggravated murder in the first degree. CP at 1202. At the close of evidence, the court asked the jury to consider both first degree murder and the lesser included offense of second degree murder. The jury instructions provided, "[i]f you find the defendant guilty of first degree murder ... you will then use the two special verdict forms ... and fill in the blanks with the answers `yes' or `no' according to the decisions you reach." CP at 1492. One of the special verdict forms read:

We, the jury, having found the defendant guilty of Murder in the First Degree, make the following answer to the question submitted by the court:

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

That Deputy John Bananola was a law enforcement officer who was performing his official duties at the time of the act resulting in death and that Deputy John Bananola was known or reasonably should have been known by the defendant to be such at the time of the killing. Answer: No.

CP at 1495. The jury explicitly found Eggleston "not guilty" of first degree murder and guilty of second degree murder. Accordingly, the jury was not required to use the special verdict form.

¶ 5 At sentencing, the State recommended an exceptional sentence. However, the trial court did not find "substantial and compelling reasons exist which justify an exceptional sentence" and sentenced Eggleston within the standard range. The Court of Appeals reversed Eggleston's murder and assault convictions due to an error in the jury instructions, juror misconduct, and a number of evidentiary errors. State v. Eggleston, noted at 108 Wash.App. 1011, 2001 WL 1077846 (2001) (unpublished).

Eggleston's Third Trial

¶ 6 On November 9, 2001, the State refiled an information charging Eggleston with murder in the second degree and assault in the first degree. CP at 1. In the third trial, the State repeatedly argued Eggleston knew that Bananola was a police officer. See, e.g., 40 Verbatim Report of Proceedings (VRP) (Dec. 12, 2002) at 6313-14, 6316, 6323, 6326, 6449-50; 41 VRP (Dec. 13, 2002) at 6474. Eggleston argued he was unaware Bananola was a police officer and he was acting in self-defense. See, e.g., 40 VRP 6404, 6447, 6457-58, 6461, 6463. The trial court gave the jury two separate self-defense instructions. The first was a standard self-defense instruction to be used if the jury believed Eggleston was unaware Bananola was a police officer.¹ CP at 777. The second self-defense instruction limited the availability of self-defense if the jury believed Eggleston was aware Bananola was a police officer.² CP at 778. The jury convicted Eggleston of murder in the second degree and assault in the first degree. The jury additionally found Eggleston used a firearm in the commission of these crimes.

¶ 7 The trial court judge imposed an exceptional sentence of 10 years above the standard range based upon the court's view that Eggleston knew Bananola was a police officer. CP at 936. The judge made several findings of fact and conclusions of law to support the sentence, including:

X.

At least by the time he pursued Deputy John Bananola into the living room, and prior to firing three shots into Deputy Bananola's head, defendant Eggleston knew that the person at whom he was shooting was a law enforcement officer.

....

II.

The defendant's knowledge that the person at whom he was shooting, and whom he killed by firing three shots into his head, one fired from a distance of 18-24 inches, was a law enforcement officer is an aggravating factor justifying an exceptional sentence above the standard sentencing range.

CP at 935, 936.

¶ 8 Eggleston again appealed his conviction and sentence. Among other things, he claimed collateral estoppel and double jeopardy principles prevented evidence of, or basing a sentence upon, Eggleston's knowledge of Bananola's status as a police officer. Amended Opening Br. at 3. He also argued the trial court erred by entering an exceptional sentence on retrial in violation of his constitutional right to a jury trial. Id. The Court of Appeals affirmed the conviction but reversed the exceptional sentence relying on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 2538, 159 L.Ed.2d 403 (2004), and remanded the case for resentencing. State v. Eggleston, 129 Wash.App. 418, 118 P.3d 959 (2005). This court granted review of only the double jeopardy and collateral estoppel issue and application of amendments to the Sentencing Reform Act of 1981(SRA), chapter 9.94A RCW.

ANALYSIS

¶ 9 Eggleston claims that the double jeopardy clause of the Fifth Amendment to the United States Constitution bars retrial on the aggravating factor that he knew Deputy Bananola was a law enforcement officer. The application of double jeopardy principles is a question of law, which this court reviews de novo. State v. Womac, 160 Wash.2d 643, 649, 160 P.3d 40 (2007).

¶ 10 The Fifth Amendment provides, "[n]o person shall ... be subject for the same offense to be twice put in jeopardy of life or limb." Washington's declaration of rights similarly indicates, "[n]o person shall ... be twice put in jeopardy for the same offense." WASH. CONST, art. I, § 9. Washington's double jeopardy clause is coextensive with the federal double jeopardy clause and "is given the same interpretation the Supreme Court gives to the Fifth Amendment." State v. Gocken, 127 Wash.2d 95, 107, 896 P.2d 1267 (1995). Both double jeopardy clauses "bar[ ] trial if three elements are met: (a) jeopardy previously attached, (b) jeopardy previously terminated, and (c) the defendant is again in jeopardy `for the same offense.'" State v. Corrado, 81 Wash.App. 640, 645, 915 P.2d 1121 (1996) `(footnotes omitted).

¶ 11 The Supreme Court has held the double jeopardy clause prevents retrying a defendant on aggravating factors supporting the death penalty, when a previous jury had rejected the imposition of the death penalty. Bullington v. Missouri, 451 U.S. 430, 446, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). However, historically, double jeopardy protections are inapplicable to sentencing proceedings because the determinations at issue do not place a defendant in jeopardy for an "offense." Monge v. California, 524 U.S. 721, 728, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998).³ Thus, the Court has declined to extend this protection against retrial to noncapital sentencing aggravators, limiting the protection to death penalty determinations. Id. at 730, 118 S.Ct. 2246; see also North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (holding the double jeopardy clause does not bar the imposition of a longer sentence following retrial). The Court found the departure from the general rule in the death penalty context was appropriate based on the heightened protection afforded death penalty determinations. Monge, ...