Brazzel v. State of Washington

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ERNEST LEE BRAZZEL,  No. 05-36145
Petitioner-Appellant,
D.C. No.
v. CV-04-05892-RBL
STATE OF WASHINGTON,
Respondent,  ORDER
AMENDING
v. OPINION AND
ALICE PAYNE, AMENDED


Respondent-Appellee. OPINION

Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding

Argued and Submitted
December 6, 2006—Seattle, Washington

Filed April 12, 2007
Amended June 22, 2007

Before: Betty B. Fletcher and M. Margaret McKeown,
Circuit Judges, and William W Schwarzer,* District Judge.

Opinion by Judge McKeown

*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.

7511
7514 BRAZZEL v. STATE OF WASHINGTON

COUNSEL

Russell V. Leonard, Federal Public Defender, Tacoma, Wash-
ington, for the appellant.

Gregory J. Rosen, Assistant Attorney General, Olympia,
Washington, for the appellee.

ORDER

Judge McKeown votes to deny the petition for rehearing en
banc and Judge B. Fletcher and Judge Schwarzer so recom-
mend. The full court has been advised of the petition for
rehearing en banc and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35. The
petition for rehearing en banc is denied.

The Opinion filed on April 12, 2007 is amended as follows:

On slip Opinion page 4235, line 15, insert the following
text: <“a reliable inference of prejudice.” Mathews, 475 U.S.
at 246.> to replace

On slip Opinion page 4235, line 26, insert the following
text after the sentence ending in the word and
before the sentence beginning with the word :

On slip Opinion page 4235, line 26, insert the following
text after the word and before : and delete the word . No
further petitions shall be entertaned.

OPINION

McKEOWN, Circuit Judge:

In this 28 U.S.C. § 2254 habeas appeal, Ernest Lee Brazzel
challenges, as a violation of the Double Jeopardy Clause, his
retrial on an attempted murder charge, after his first jury
remained silent on that charge, and convicted him of a lesser
alternative offense. Two different juries have now convicted
Brazzel of the lesser offense, first degree assault. Both juries
failed to reach the alternate and more serious charge of
attempted murder. The framework for our analysis of this
double jeopardy challenge is found in two Supreme Court
cases—Green v. United States, 355 U.S. 184 (1957), and
Price v. Georgia, 398 U.S. 323 (1970).

In Green, the Supreme Court explained the doctrine of
implied acquittal: when a jury convicts on a lesser alternate
charge and fails to reach a verdict on the greater charge—
without announcing any splits or divisions and having had a
full and fair opportunity to do so—the jury’s silence on the
second charge is an implied acquittal. 355 U.S. at 191. A ver-
dict of implied acquittal is final and bars a subsequent prose-
cution for the same offense. See id. Under Price, putting the
defendant in jeopardy a second time is not necessarily harm-
less error or moot, even if the defendant is only convicted of
the lesser crime, because “[t]he Double Jeopardy Clause . . .
is cast in terms of the risk or hazard of trial and conviction,
not of the ultimate legal consequences of the verdict.” 398
U.S. at 331.

Although the Washington Court of Appeals assumed that
the lack of a verdict on the attempted murder charge follow-
7516 BRAZZEL v. STATE OF WASHINGTON
ing Brazzel’s first trial was an implied acquittal, the state
court grounded its denial of Brazzel’s double jeopardy claim
in a mootness or harmless error analysis in contravention of
Price. Accordingly, because the decision was contrary to
clearly established U.S. Supreme Court precedent, we reverse
with instructions to grant the writ of habeas corpus. As did the
Court in Price, we remand the case to enable the Washington
courts “to resolve the issues pertaining to petitioner’s retrial,
if any such retrial is to be had.” Id. at 332.

BACKGROUND

Ernest Brazzel was charged with three counts related to the
repeated assault of his girlfriend in 1997 and 1998. Count I
alleged attempted first degree murder or, in the alternative,
first degree assault, committed between May 10 and May 16,
1998. Count II alleged second degree assault, committed
between May 4 and May 11, 1998. Count III alleged second
degree assault, committed between April 15 and April 22,
1998.

The jury convicted Brazzel of first degree assault on Count
I, second degree assault on Count II, and second degree
assault on Count III. On Count I, the jury remained silent on
the first degree attempted murder charge, leaving the verdict
form blank. During the jury poll, at the conclusion of their
deliberations, the jurors did not claim to be hung or announce
any splits or divisions. The state did not request that the jury
be declared hung as to the attempted murder count; nor did
the state take any other post-verdict action on the attempted
murder charge. The trial judge discharged the jury, taking as
final the convictions on the assault counts, and sentenced
Brazzel to 456 months in prison.

After Brazzel appealed, the prosecutor conceded that a sig-
nificant jury instruction unrelated to this appeal was errone-
ous. The case was remanded for a new trial.
 BRAZZEL v. STATE OF WASHINGTON 7517
The prosecutor refiled the same alternative charge as the
original Count I: Attempted Murder in the First Degree “and
in the alternative” Assault in the First Degree, and the various
other assault charges. Brazzel moved to dismiss the attempted
murder allegation on double jeopardy grounds. In response,
the government argued that based on the phrasing of the first
set of jury instructions, the jury’s silence indicated a hung
jury and not an implied acquittal.

The relevant portion of the jury instruction reads as fol-
lows:

When completing the verdict forms, you will first
consider the crime of ATTEMPTED MURDER IN
THE FIRST DEGREE as charged in Count I. If you
unanimously agree on a verdict, you must fill in the
blank provided in verdict form A the words “not
guilty” or the word “guilty,” according to the deci-
sion you reach. If you cannot agree on a verdict, do
not fill in the blank provided in Verdict Form A.

If you find the defendant guilty on verdict form A,
do not use verdict form B. If you find the defendant
not guilty of the crime of ATTEMPTED MURDER
IN THE FIRST DEGREE, or if after full and careful
consideration of the evidence you cannot agree on
that crime, you will consider the alternative crime of
ASSAULT IN THE FIRST DEGREE as charged in
Count I.

Referencing this instruction, the government posited that the
jury must not have “unanimously” agreed as to the attempted
murder charge, therefore leaving the form blank, which
resulted in a hung jury and a mistrial on that charge, and per-
mitted a retrial for attempted murder.

Brazzel countered that the record provided no indication or
evidence that the jury hung or that a mistrial had been
7518 BRAZZEL v. STATE OF WASHINGTON
declared with respect to the attempted murder charge. He
acknowledged that the instruction stated that if the jury could
not agree they should leave the form blank and convict on the
lesser alternate count, but argued that a mere inability to agree
with the option of compromising on a lesser alternate offense,
without more, does not rise to the level of a hung jury permit-
ting retrial. After the second trial judge rejected Brazzel’s
motion to bar retrial on the attempted murder charge, Brazzel
stood trial a second time for attempted murder. Once again,
the jury did not convict Brazzel of that charge, leaving the rel-
evant verdict form blank. The jury was similarly instructed to
proceed to the assault charge if they could not agree on the
attempted murder charge. In a reprise of the first trial, the jury
convicted Brazzel of first degree assault and the other assault
counts. Brazzel was sentenced to 240 months in prison.

Brazzel exhausted his double jeopardy claim in state court
in a pro se supplemental brief to the Washington Court of
Appeals. In an unpublished opinion, the court concluded that
any double jeopardy violation was “moot” since Brazzel was
“essentially acquitted” of first degree murder following the
second trial:

Relying on the double jeopardy clause, Brazzel
claims pro se that he should not have been tried for
attempted first degree murder in the second trial,
given that the jury in the first trial acquitted him of
that crime. If his claim is valid, we should dismiss
the charge of first degree murder. Yet that has
already been done, because he has essentially been
acquitted of that charge. Assuming that his conten-
tion was valid earlier, it is moot now.

Washington v. Brazzel, No. 27877-4-II (Wash. Ct. App. filed
Sept. 30, 2003) (Emphasis added).

In essence, the Washington Court of Appeals reasoned that
the double jeopardy violation was harmless error because the
 BRAZZEL v. STATE OF WASHINGTON 7519
jury’s silence on the attempted murder charge in the second
case amounted to an implied acquittal. The jury’s silence,
which the court of appeals treated as an implied acquittal in
the second trial, was identical to the jury’s silence following
the first trial.

After the Washington Court of Appeals denied relief, Braz-
zel moved for discretionary review by the Washington
Supreme Court, again claiming a double jeopardy violation.
His motion was denied without comment. The United States
Supreme Court denied his petition for writ of certiorari. Braz-
zel v. Washington, 543 U.S. 1004 (2004) (mem.).

Brazzel filed a timely federal habeas petition in the United
States District Court for the Western District of Washington.
The district court, upon the recommendation of the magistrate
judge, dismissed Brazzel’s double jeopardy claim. The magis-
trate judge reasoned that assault is not a lesser included
offense of attempted murder, and that the jury’s failure to
convict Brazzel of the alternative murder charge did not
amount to an implied acquittal.

ANALYSIS

We review de novo the district court’s decision to dismiss
Brazzel’s federal habeas petition. Lockhart v. Terhune, 250
F.3d 1223, 1228 (9th Cir. 2001). Under the Anti-Terrorism
and Effective Death Penalty Act of 1996 (AEDPA), we may
not grant relief to a state habeas petitioner unless the state
courts’ failure to grant relief was “contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1). “In a habeas appeal, we review the last
reasoned decision in the state court system,” here the Wash-
ington Court of Appeals’ determination that the double jeop-
ardy violation was “moot.” Riggs v. Fairman, 399 F.3d 1179,
1182 (9th Cir. 2005) (citing Robinson v. Ignacio, 360 F.3d
1044, 1055 (9th Cir. 2004)). “We have relaxed AEDPA’s
7520 BRAZZEL v. STATE OF WASHINGTON
strict standard of review when the state court reaches a deci-
sion on the merits but provides no reasoning to support its
conclusion. Under such circumstances, we independently
review the record to determine whether the state court clearly
erred in its application of Supreme Court law.” Pirtle v. Mor-
gan, 313 F.3d 1160, 1167 (9th Cir. 2002).

I. THE DOUBLE JEOPARDY LANDSCAPE

[1] The Fifth Amendment’s Double Jeopardy Clause pro-
hibits retrial after an acquittal, whether express or implied by
jury silence. See Green, 355 U.S. at 191. An implied acquittal
occurs when a jury returns a guilty verdict as to a lesser
included or lesser alternate charge, but remains silent as to
other charges, without announcing any signs of hopeless
deadlock. See id. at 191, 194. As early as 1898, the Supreme
Court announced that jury silence is tantamount to acquittal,
explaining: “where a jury, although convicting as to some, are
silent as to other, counts in an indictment, and are discharged
without the consent of the accused, . . . the effect of such dis-
charge is ‘equivalent to acquittal’ . . . .” Selvester v. United
States, 170 U.S. 262, 269 (1898).

[2] When, as here, the defendant’s conviction is overturned
due to a jury instruction error, the government may retry the
defendant as to the charge of conviction, but not for other
charges of which the first jury impliedly or expressly acquit-
ted him. See, e.g., Ball v. United States, 163 U.S. 662, 672
(1896) (“[A] defendant who procures a judgment against him
upon an indictment to be set aside may be tried anew upon the
same indictment, or upon another indictment, for the same
offense of which he had been convicted.”). In Green, the
Supreme Court made plain the prohibition on retrial following
jury silence:

[H]ere, the jury was dismissed without returning any
express verdict . . . and without Green’s consent. . . .
[U]nder established principles of former jeopardy
 BRAZZEL v. STATE OF WASHINGTON 7521
. . . Green’s jeopardy for first degree murder came
to an end when the jury was discharged so that he
could not be retried for that offense. . . . [T]his case
can be treated no differently, for purposes of former
jeopardy, than if the jury had returned a verdict
which expressly read: “We find the defendant not
guilty of murder in the first degree but guilty of mur-
der in the second degree.

355 U.S. at 191 (citations omitted). Then, in Price, the Court
reaffirmed its “refus[al] to rule that jeopardy for an offense
continues after an acquittal, whether that acquittal is express
or implied by a conviction on a lesser included offense when
the jury was given a full opportunity to return a verdict on the
greater charge.” 398 U.S. at 329.

In contrast to an implied acquittal, retrial is permitted
where there is a mistrial declared due to the “manifest neces-
sity” presented by a hung jury. See United States v. Perez, 22
U.S. 579, 580 (1824). A hung jury occurs when there is an
irreconcilable disagreement among the jury members. A “high
degree” of necessity is required to establish a mistrial due to
the hopeless deadlock of jury members. See Arizona v. Wash-
ington, 434 U.S. 497, 506 (1978). The record should reflect
that the jury is “genuinely deadlocked.” Richardson v. United
States, 468 U.S. 317, 324-25 (1984) (explaining that when a
jury is genuinely deadlocked, the trial judge may declare a
mistrial and require the defendant to submit to a second trial);
see also Selvester, 170 U.S. at 270 (“But if, on the other hand,
after the case had been submitted to the jury they reported
their inability to agree, and the court made record of it and
discharged them, such discharge would not be equivalent to
an acquittal, since it would not bar the further prosecution.”).

“The trial judge’s decision to declare a mistrial when he
considers the jury deadlocked is . . . accorded great deference
by a reviewing court.” Arizona v. Washington, 434 U.S. at
510; United States v. Salvador, 740 F.2d 752, 755 (9th Cir.
7522 BRAZZEL v. STATE OF WASHINGTON
1984) (citations omitted). When a judge does not find a mis-
trial to be of manifest necessity in his or her own judgment,
“the prosecutor must shoulder the burden of justifying the
mistrial if he is to avoid the double jeopardy bar. His burden
is a heavy one. The prosecutor must demonstrate ‘manifest
necessity’ for any mistrial declared over the objection of the
defendant.” Arizona v. Washington, 434 U.S. at 505.

[3] Contrary to the impression of the magistrate judge, for
double jeopardy to attach, there is no explicit requirement that
the charged offenses be greater and lesser included offenses.
Rather, the Supreme Court is clear that a defendant may not
be retried after an implied acquittal of any offense. See, e.g.,
Green, 355 U.S. at 191, 194. The defining fact is that “it is
a distinct and different offense”:

It is immaterial whether [it] . . . is a lesser offense
included . . . or not. The vital thing is that it is a dis-
tinct and different offense. If anything, the fact that
it cannot be classified as “a lesser included offense”
. . . buttresses our conclusion . . . . American courts
have held with uniformity that where a defendant is
charged with two offenses, neither of which is a
lesser offense included within the other, and has
been found guilty on one but not on the second he
cannot be tried again on the second even though he
secures reversal of the conviction and even though
the two offenses are related offenses charged in the
same indictment.

Id. at 194 (citation omitted) (emphasis added).

II. THE STATE COURT’S ASSUMPTION OF IMPLIED ACQUITTAL

In deciding Brazzel’s double jeopardy claim the Washing-
ton Court of Appeals treated the jury’s silence as “essentially”
an acquittal. Addressing Brazzel’s claim that he had been
acquitted of murder in the first trial, the court stated: “If his
 BRAZZEL v. STATE OF WASHINGTON 7523
claim is valid, we should dismiss the charge of first degree
murder. Yet that has already been done because he has essen-
tially been acquitted of that charge.” The jury’s silence fol-
lowing the first trial was identical to that following the
second, indicating that the Washington Court of Appeals
understood the earlier jury’s silence as “essentially” an acquit-
tal as well. The court of appeals assumed, in effect, that the
jury’s silence on the attempted murder charge was not evi-
dence that the jury hung; had their silence resulted in a hung
jury, then there unquestionably would have been no legitimate
double jeopardy claim and no need to consider the prejudicial
effect of the jury’s silence.

Under AEDPA, we ordinarily defer to the state court’s
determination of a mixed question of law and fact such as this
unless it is contrary to or an unreasonable application of
Supreme Court law. See 28 U.S.C. § 2254(d)(1). We apply a
less stringent standard of review when the state court reaches
a decision on the merits but does not supply reasoning for its
decision. Pirtle, 313 F.3d at 1167. Under such circumstances,
we review the record to determine if there was clear error. Id.
If the state court has not addressed a constitutional issue at all,
then our review is de novo. Id.; accord Menendez v. Terhune,
422 F.3d 1012, 1026 (9th Cir. 2005).

The Washington Court of Appeals reached the constitu-
tional issue presented by Brazzel’s double jeopardy challenge
and treated the jury’s silence following Brazzel’s first trial as
an implied acquittal, but held it was moot due to the subse-
quent implied acquittal. Because the state court did not pro-
vide any reasons for its determination, our review is for clear
error. See Pirtle, 313 F.3d at 1167. We note, however, that if
we treat the state court finding with complete AEDPA defer-
ence, the result is the same.

[4] The state court did not clearly err when it treated the
first jury’s silence as an implied acquittal. Although the
Washington Court of Appeals cited no state precedent directly
7524 BRAZZEL v. STATE OF WASHINGTON
on point, under then-governing Washington law, Brazzel’s
retrial for the greater offense following conviction only on the
lesser alternative offense was probably impermissible. See,
e.g., State v. Brown, 903 P.2d 459, 463 (Wash. 1995) (holding
that following the jury’s inability to agree on a greater charge,
“[d]ue to double jeopardy concerns, the defendant cannot be
retried on charges greater than the charge for which he was
convicted.”) (citations omitted).1 The Washington Supreme
Court has identified avoidance of hung juries as one of the
purposes of the “unable to agree” instruction, suggesting that
a conviction for the lesser charged offense pursuant to such
instruction does not render the “inability to agree” on the
greater charge jury hanging. See State v. Labanowski, 816
P.2d 26, 34 (Wash. 1991) (noting that unable to agree instruc-
1
The Washington Supreme Court recently decided two cases with fac-
tual circumstances more closely related to Brazzel’s. In State v. Linton,
132 P.3d 127 (Wash. 2006), which failed to garner a majority opinion, the
lead opinion held: “Where an unable to agree instruction is used which
allows the jury to move on to a lesser included offense when it acquits or
is unable to agree on the greater charge, and the jury does move on with-
out entering a verdict, the jury will necessarily remain ‘silent’ on the
greater offense. . . . Under the implied acquittal doctrine then, the judge
would have had to conclude that the jury implicitly acquitted Linton of
first degree assault.” Id. at 133. Only several months later, the court
changed course and in State v. Ervin, 147 P.3d 567 (Wash. 2006), held
that where an unable to agree instruction is given “the blank verdict forms
[on the greater offense] indicate . . . that the jury was unable to agree.” Id.
at 572. The court permitted retrial for the greater offense. Id. at 573. Yet,
in a puzzling footnote, the court stated: “This is not to decide, however,
that the jury’s inability to agree on the greater charges is the equivalent of
a mistrial on those charges. Unable to agree instructions instruct the jury
to end deliberations on a greater charge and move on to a lesser charge
once disagreement on the greater has been established. Comparatively,
state and federal jurisprudence establishes that a jury must be ‘genuinely
deadlocked’ before a mistrial can be declared.” Id. at 572 n.10 (citations
omitted). In any event, the Washington Court of Appeals did not have the
benefit of these cases in deciding Brazzel’s appeal, and could only have
been influenced by existing state precedent prohibiting retrial for a greater
offense after reversal of a conviction for a lesser offense charged in the
same count. See Brown, 903 P.2d at 463.
 BRAZZEL v. STATE OF WASHINGTON 7525
tions serve a variety of purposes, among them reducing the
incidence of hung juries).

No Supreme Court case addresses precisely such an “un-
able to agree” jury instruction, so the state court’s treatment
of the jury’s silence cannot be characterized as “contrary to”
federal law. Under federal law, the Washington Court of
Appeals’ determination was also not unreasonable. Consistent
with Supreme Court precedent, the state court could reason-
ably conclude that the inability of Brazzel’s first jury, as
instructed, “to reach [a] unanimous decision after full and
careful deliberation on the charge of attempted murder in the
first degree” did not by itself result in a hung jury and “mistri-
al” by “manifest necessity” on the attempted murder charge,
but rather was an implied acquittal. Assuming, as we must,
that the jury followed the instructions, we know the jury did
not actually acquit Brazel on the attempted murder charge
because it did not fill in the box with a “not guilty” notation.
Instead, the jury “[could] not agree” on that charge, remained
“silent,” and convicted of a lesser alternative offense. Under
Green and Price, “petitioner’s jeopardy on the greater charge
had ended when the first jury ‘was given a full opportunity to
return a verdict’ on that charge and instead reached a verdict
on the lesser charge.” Price, 398 U.S. at 329 (quoting Green,
355 U.S. at 191).

Following Brazzel’s first trial, the judge polled the jury
asking two questions: “Is this your verdict, is this the way you
individually, personally voted” and “Is this the verdict of the
jury, meaning is this the verdict of all twelve of you?” Each
juror responded in turn, “Yes” or “Yes, it is.”

No inquiry was made to determine whether the jury had
“genuinely deadlocked” or simply moved to the lesser alterna-
tive assault charge as a compromise. Notably as well, after
Brazzel’s first trial, the government did not construe the jury’s
silence as “hanging” or seek a retrial as to that count, even
7526 BRAZZEL v. STATE OF WASHINGTON
though the state now argues the blank form should be con-
strued as a hopeless deadlock.

Under federal law, an inability to agree with the option of
compromise on a lesser alternate offense does not satisfy the
high threshold of disagreement required for a hung jury and
mistrial to be declared. See, e.g., Arizona v. Washington, 434
U.S. at 509. The Supreme Court has characterized disagree-
ment sufficient to warrant a mistrial as “hopeless” or “genu-
ine” “deadlock.” Id. (“[T]he trial judge may discharge a
genuinely deadlocked jury and require the defendant to sub-
mit to a second trial.”). Genuine deadlock is fundamentally
different from a situation in which jurors are instructed that if
they “cannot agree,” they may compromise by convicting of
a lesser alternative crime, and they then elect to do so without
reporting any splits or divisions when asked about their una-
nimity.

In contrast, in Ervin, where similar “unable to agree”
instructions were used, the jury deliberated for five weeks,
reporting repeatedly in notes to the court that it was unable to
reach a unanimous verdict:

The jury has continued to deliberate according to the
court’s direction. We are still unable to reach a unan-
imous verdict on any of the three charges . . . . Since
our last inquiry to the court, there has been no move-
ment toward a unanimous verdict on any of the
counts. We believe that additional deliberation
would not result in a unanimous verdict on any of
the three counts. We have stopped deliberations and
asked for the court’s direction.

147 P.3d at 568. Ultimately, the jury in Ervin left two verdict
forms blank pursuant to the “unable to agree” instructions and
the Washington Supreme Court held that the blank verdict
forms did not prohibit retrial. See id. at 572.
 BRAZZEL v. STATE OF WASHINGTON 7527
In Salvador, 740 F.2d at 754 (9th Cir. 1984), after deliber-
ating for “approximately nine hours,” on the second day of
deliberations, the jury sent the judge a note stating: “The jury
is not able to reach a decision on either defendant. We are
deadlocked.” The judge instructed the jury to continue delib-
erating and after an additional four hours and overnight recess
the jury foreman sent a second note:

We are unable to reach a decision. The problem is a
reliance on an answer arrived at through religious
inspiration, and an unwillingness to move from that
decision and base a decision on the evidence. The
evidence has been thoroughly examined. Those bas-
ing their decision on the evidence are unwilling to
change.

Id. After reading this second note, the court discharged the
jury and declared a mistrial, over the defendants’ objections.
Id. This court held that a mistrial was warranted and that “the
requisite ‘manifest necessity’ exist[ed] to declare a mistrial.”
Id. at 755.

The Eighth Circuit addressed a similar circumstance in
United States v. Bordeaux, 121 F.3d 1187 (8th Cir. 1997).
The jury that was given an “unable to agree” instruction wrote
on that instruction “[a]fter all reasonable efforts, we, the jury,
were unable to reach a verdict on the charge ‘Attempted
Aggravated Sexual Abuse.’ ” Id. at 1192. The trial judge
declared a mistrial and retrial on that charge was upheld as
permissible. See id. at 1193.

[5] As compared to the evidence of jury deadlock in Ervin,
Salvador, and Bordeaux, nothing in the record of Brazzel’s
case indicates the jury’s inability to agree was hopeless or
irreconcilable—a manifest necessity permitting a retrial for
attempted murder. In contrast, following Brazzel’s first trial,
the jury offered no indication of any inability to reach a ver-
dict beyond what may be deduced from the jury instruction
7528 BRAZZEL v. STATE OF WASHINGTON
itself and the trial judge did not declare a mistrial. “[T]here
are degrees of necessity and we require a ‘high degree’ before
concluding that a mistrial is appropriate.” Arizona v. Wash-
ington, 434 U.S. at 506.

[6] The purpose of the rule permitting retrial if a jury hangs
is to accord “recognition to society’s interest in giving the
prosecution one complete opportunity to convict those who
have violated its laws.” Id. at 509. Here, the prosecution was
given one complete opportunity to convict Brazzel of
attempted first degree murder. The jury declined to do so. In
Green, the Supreme Court rejected the proposition that “in
order to secure the reversal of an erroneous conviction of one
offense, a defendant must surrender his valid defense of for-
mer jeopardy not only on that offense but also on a different
offense for which he was not convicted and which was not
involved in his appeal.” 355 U.S. at 193. The state court’s
treatment of the jury’s “silence” following Brazzel’s first trial
as an implied acquittal is a permissible application of govern-
ing law.

III. THE STATE COURT’S FINDING OF MOOTNESS

[7] Following its assumption that the jury’s silence on the
attempted murder charge was “essentially” an acquittal, the
state court concluded that Brazzel’s double jeopardy claim
was “moot” because he was “essentially acquitted” of
attempted murder following the second trial. The Supreme
Court has held that a double jeopardy violation is not to be
readily disposed of as “moot” or harmless:

The Double Jeopardy Clause . . . is cast in terms of
the risk or hazard of trial and conviction, not of the
ultimate legal consequences of the verdict. To be
charged and to be subjected to a second trial for first-
degree murder is an ordeal not to be viewed lightly.
Further, and perhaps of more importance, we cannot
determine whether or not the murder charge against
 BRAZZEL v. STATE OF WASHINGTON 7529
petitioner induced the jury to find him guilty of the
less serious offense of voluntary manslaughter rather
than to continue to debate his innocence.

Price, 398 U.S. at 331. In other words, acquittal (even if
implied) upon retrial of the greater offense does not by itself
render the double jeopardy violation harmless.

[8] Because Brazzel’s circumstances are similar to those in
Price, Brazzel was twice put in jeopardy for attempted mur-
der. The circumstance of a retrial on the murder charge should
not have been characterized as moot. As in Price, “we cannot
determine whether or not the murder charge against petitioner
induced the jury to find him guilty of the [first degree assault]
rather than to continue to debate his innocence.” Id. In this
respect, the Washington Court of Appeals’ decision finding
any error “moot” was contrary to clearly established Supreme
Court precedent.

The Supreme Court has distinguished Price from cases in
which the jury did not acquit the defendant of the greater
offense, but found the defendant guilty of the greater offense
and the alternative lesser offense by implication. Under such
circumstances, the burden rests on the defendant to establish
that being tried twice for the greater offense tainted the con-
viction of the lesser offense. Morris v. Mathews, 475 U.S.
237, 246 (1986) (“Price did not impose an automatic retrial
rule . . . . Rather, the Court relied on the likelihood that . . .
the charge of the greater offense for which the jury was
unwilling to convict also made the jury less willing to con-
sider the defendant’s innocence on the lesser charge. . . . The
jury did not acquit Mathews of the greater offense . . . but
found him guilty of that charge and, a fortiori, of the lesser
offense of murder as well.”).

Unlike in Matthews, Brazzel was impliedly acquitted at his
second trial of the greater offense and convicted of the lesser
alternative charge. Given the similarity of the facts here to
7530 BRAZZEL v. STATE OF WASHINGTON
Price, and the clear differences between Brazzel’s second trial
and the challenged result in Matthews, the analysis in Price
controls.

[9] Even applying Matthews, however, Brazzel has come
forward with “a reliable inference of prejudice.” Mathews,
475 U.S. at 246. He contends that the jury may have been
induced to return a verdict of guilty as to first degree assault
because of the light in which the attempted murder charge
cast the domestic violence incidents. Without the presence of
the greater alternative offense, attempted first degree murder,
the jury may have convicted him only of the two second
degree assault counts. Although the evidence as characterized
by the Washington Court of Appeals is more than sufficient
to satisfy the elements of first degree assault, the same evi-
dence is also sufficient to support a conviction for attempted
first degree murder, and two juries declined to convict Brazzel
of that charge. Absent the murder charge, the landscape of the
trial would have been significantly different. Therefore, there
is a “reliable” inference that Brazzel may have been preju-
diced by the presence of the greater, jeopardy barred charge
at his second trial, and the Washington Court of Appeals’
determination that Brazzel’s double jeopardy claim was
“moot” contravened clearly established Supreme Court prece-
dent.

REVERSED with instructions to grant the writ of habeas
corpus, and REMANDED to the state to determine what non-
jeopardy barred retrial, if any, is to be had.