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DEC 1 3 2018
'^IXAA hyim-f,(Q SUSAN L. CARLSON
CHtEFJUSTKB SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 95454-2
Petitioner,
V. EN BANC
DARCUS DEWAYNE ALLEN^
Filed: DEC 1 3 2018
Respondent.
YU, J. — This case asks whether the aggravating circumstances listed in
ROW 10.95.020 are "elements" ofthe offense of aggravated first degree murder
for purposes of the Fifth Amendment's double jeopardy clause. U.S. Const.
amend. V. Respondent Dorcus Dewayne Allen was convicted of four counts of
first degree murder but acquitted oftwo ROW 10.95.020 aggravating
circumstances on each count. We later vacated Allen's convictions and remanded
for a new trial. State v. Allen, 182 Wn.2d 364, 387, 341 P.3d 268(2015){Allen I).
The case caption spells the defendant's first name as Darcus while the defendant's
briefing spells his first name as Dorcus. There has been no motion to amend the case caption,
but we use the spelling from the defendant's briefing in the body of this opinion.
State V. Allen, No. 95454-2
The question before us now is whether Allen can be tried a second time on the
RCW 10.95.020 aggravating circumstances. The trial court ruled that he cannot,
and the Court of Appeals agreed. We hold that retrial on the aggravating
circumstances is barred by double jeopardy principles and thus affirm.'
Factual Background and Procedural History
In November 2009, Maurice Clemmons shot and killed four Lakewood
police officers. Allen drove Clemmons to and from the crime scene. The factual
details are recounted in Allen I and need not be repeated here. Id. at 369-70.
Allen was charged as an accomplice with four counts of aggravated murder
in the first degree pursuant to RCW 10.95.020, which provides that "[a] person is
guilty of aggravated first degree murder, a class A felony, if he or she commits first
degree murder as defined by RCW 9A.32.030(l)(a). . . and one or more of[14
listed] aggravating circumstances exist." The information charged Allen with two
aggravating circumstances for each count:
(1)that the victim was a law enforcement officer who was performing
[his or her] official duties at the time of the act resulting in death, and
the victim was known or reasonably should have been laiown by the
defendant to be such at the time of the killing; and/or (2)that there
was more than one victim and the murders were part of a common
scheme or plan or the result of a single act ofthe defendant; contrary
to RCW 10.95.020(1) and 10.95.020(10).
'Allen also argues that collateral estoppel provides an alternative basis for holding that he
cannot be retried on the aggravating circumstances. We decline to consider this argument
because it was not raised below. RAP 2.5(a).
State V. Allen, No. 95454-2
Clerk's Papers(CP)at 1-3.^ If the jury found that either one of the aggravating
circumstances existed, the minimum penalty for each first degree murder
conviction would increase from a term of years to mandatory life imprisonment
without the possibility of release or parole.^ Former RCW 10.95.030(1)(1993).
At the close of trial, the jury was instructed to separately consider each of
the four counts of murder in the first degree and to return a verdict of guilty or not
guilty on each count. The jury was also given special verdict forms related to each
count and was instructed to fill these forms out only if it found Allen guilty of the
related murder counts. The special verdict forms read as follows:
We,the jury, having found the defendant guilty of premeditated
Murder in the First Degree on verdict form [I-IV], return a special
verdict by answering as follows as to Count [TIV]:
QUESTION #1: Has the State proven the existence of the following
aggravating circumstance beyond a reasonable doubt?
The victim was a law enforcement officer who was performing
his or her official duties at the time of the act resulting in death
and the victim was known or reasonably should have been
known by the defendant to be such at the time of the killing.
ANSWER#1: (Write "yes" or "no." "Yes" requires
unanimous agreement)
^ On each count, Allen was also charged with a firearm enhancement and an additional
aggravating circumstance pursuant to RCW 9.94A.535(3)(v). These additional aggravators are
not before us.
^ Aggravated first degree murder pursuant to RCW 10.95.020 was also punishable by
death, but the State did not seek the death penalty. Former RCW 10.95.030(2)(1993).
State V. Allen, No. 95454-2
QUESTION #2: Has the State proven the existence of the following
aggravating circumstance beyond a reasonable doubt?
There was more than one person murdered and the murders
were part of a common scheme or plan or the result of a single
act of the person.
ANSWER#2: (Write "yes" or "no." "Yes" requires
unanimous agreement)
CP at 35-38. The presiding juror wrote "no" in the blank next to each answer and
circled "no." Id. After reading each verdict and special verdict form into the
record, the trial court polled the jury individually, asking each juror,"Is this your
verdict?" and "Is it the verdict of the jury?" Id. at 148-50. Each juror answered
"yes" to each question. Id. Allen was sentenced to 420 years in prison.
On review, this court vacated Allen's convictions due to prosecutorial
misconduct and remanded for a new trial. Allen I, 182 Wn.2d at 387. On remand,
the State filed the same charges as in the first trial, including the same ROW
10.95.020 aggravating circumstances. The trial court granted Allen's motion to
dismiss the aggravating circumstances on double jeopardy grounds and denied the
State's motion for reconsideration.
The Court of Appeals affirmed on discretionary interlocutory review,
holding that the "State cannot retry Allen on the aggravating circumstances for
which a jury found a lack of proof." State v. Allen, 1 Wn. App. 2d 774, 787, 407
State V. Allen, No. 95454-2
P.3d 1166 (2017). We granted the State's petition for review. State v. Allen, 190
Wn.2d 1007, 414 P.3d 575 (2018).
Issues
A. Did the jury in Allen's first trial unanimously acquit him of both
RCW 10.95.020 aggravating circumstances?
B. If Allen was acquitted on the aggravating circumstances, does the
prohibition on double jeopardy bar a retrial on those aggravating circumstances?
Analysis
A. Any ambiguity as to whether the jury unanimously acquitted Allen of the
two aggravating circumstances was cured when the judge polled the jury
Both the United States and Washington Constitutions prohibit successive
prosecutions for an offense on which the defendant has been acquitted. U.S.
Const, amend. V; Wash. Const, art. I, § 9; Bravo-Fernandez v. United States,
U-S. , 137 S. Ct. 352, 357, 196 L. Ed. 2d 242(2016); State v. Guzman Nunez,
174 Wn.2d 707, 717 n.4, 285 P.3d 21 (2012). Before we can determine whether
Allen may be retried on the aggravating circumstances, we must determine
whether he was acquitted ofthem at his first trial. The trial court and Court of
Appeals determined that he was. We agree.
At the time of Allen's trial, our precedent held that if a jury did not
unanimously find that the State had proved an RCW 10.95.020 aggravating
circumstance, the defendant was acquitted of that aggravating circumstance. State
State V. Allen, No. 95454-2
V. Goldberg, 149 Wn.2d 888, 894, 72 P.3d 1083 (2003). This "nonunanimity rule"
was later overruled in Guzman Nunez, which held that acquittal of aggravating
circumstances requires jury unanimity. 174 Wn.2d at 718-19. But Guzman Nunez
was decided after Allen's trial was completed. Therefore, in accordance with then-
controlling precedent, the special verdict forms used in Allen's trial required jury
unanimity only in order to answer "yes" on the aggravating circumstances. The
special verdict forms did not require jury unanimity in order to answer "no." We
must determine if the jury was nonetheless unanimous in finding that the State
failed to prove the RCW 10.95.020 aggravating circumstances.
Viewed in isolation, the "no" answer on the special verdict forms could be
interpreted in two ways:(a)the jury unanimously answered "no" or (b)the jury
answered "no" because they could not unanimously answer "yes." However, when
polled by the trial court, each juror affirmed that the "no" verdicts were his or her
own verdicts and the verdicts ofthe jury. Such individual jury polling is generally
evidence ofjury unanimity. State v. Lamar, 180 Wn.2d 576, 587, 327 P.3d 46
(2014).
The State contends that the jurors might have interpreted both questions as
asking the same thing:"Do you unanimously agree that this was not a unanimous
State V, Allen, No. 95454-2
'yes'"?'^ We disagree. It is unlikely that an ordinary juror would be confused in
this way, and there is no indication of such confusion in the record. Thus, we '
affirm that the jury unanimously acquitted Allen of both aggravating circumstances
at his first trial.
B. The prohibition on double jeopardy bars retrial of the RCW 10.95.020
aggravating circumstances
Because Allen was unanimously acquitted of the RCW 10.95.020
aggravating circumstances at his first trial, we must now determine whether the
constitutional prohibition on double jeopardy bars a retrial on these aggravating
circumstances. Outside of the death penalty context, the double jeopardy clause
applies only to offenses, not sentences. Bullington v. Missouri, 451 U.S. 430, 438,
101 S. Ct. 1852, 68 L. Ed. 2d 270(1981). Therefore, the critical question is
whether the RCW 10.95.020 aggravating circumstances are "elements" of the
"offense" of aggravated first degree murder in a noncapital case for double
jeopardy purposes.
We have previously held that RCW 10.95.020 aggravating circumstances
"are 'aggravation of penalty' factors which enhance the penalty for the offense,
and are not elements of a crime as such." State v. Kincaid, 103 Wn.2d 304, 307,
Wash. Supreme Court oral argument, State v. Allen, No. 95454-2(Oct. 18, 2018), at 12
min., 41 sec., video recording by TVW,Washington State's Public Affairs Network,
http://www.tvw.org.
State V. Allen, No. 95454-2
692 P.2d 823 (1985). As a result, we have previously stated that "double jeopardy
does not apply to aggravating circumstances outside the death penalty context."
Guzman Nunez, 174 Wn.2d at 717; see also State v. Kelley, 168 Wn.2d 72, 80-82,
226 P.3d 773 (2010). However, because "the legal underpinnings of our precedent
have changed" so significantly, we are compelled to revisit the issue in light of
subsequent decisions of the United States Supreme Court. W.G. Clark Constr. Co.
V. Pac. Nw. Reg'l Council ofCarpenters, 180 Wn.2d 54, 66, 322 P.3d 1207(2014).
The United States Supreme Court has clarified that for Sixth Amendment
purposes,"any fact that increases the mandatory minimum is an 'element' that
must be submitted to the jury." Alleyne v. United States, 570 U.S. 99, 103, 133
S. Ct. 2151, 186 L. Ed. 2d 314(2013)(overruling//arm v. United States, 536 U.S.
545, 122 S. Ct. 2406, 153 L. Ed. 2d 524(2002)). A plurality of the Court has
further indicated that there is "no principled reason to distinguish, in this context,
between what constitutes an offense for purposes of the Sixth Amendment's jury-
trial guarantee and what constitutes an 'offence' for purposes of the Fifth
Amendment's Double Jeopardy Clause." Sattazahn v. Pennsylvania, 537 U.S.
101, 111, 123 S. Ct. 732, 154 L. Ed. 2d 588 (2003).
In light ofthis guidance and as explained below, we find no logical or legal
basis for holding that the elements of a crime for purposes of the Sixth
Amendment's right to trial by jury are different from the elements of a crime for
State V. Allen, No. 95454-2
purposes of the Fifth Amendment's double jeopardy clause. For both purposes, a
fact other than proof of a prior conviction that increases the mandatory minimum
sentence is an element of the offense. Accordingly, we hold that RCW 10.95,020
aggravating circumstances, which increase the mandatory minimum penalty for
first degree murder, are elements of the offense of aggravated first degree murder
for purposes of the double jeopardy clause. Therefore, Allen cannot be retried on
the aggravating circumstances.
1. The original distinction between "sentencing factors" and "elements"
for double jeopardy purposes paralleled the distinction between
sentencing factors and elements for jury trial purposes
"A criminal 'offence' is composed of'elements,' which are factual
components that must be proved by the state beyond a reasonable doubt and
submitted (if the defendant so desires) to a jury." Monge v. California, 524 U.S.
721, 737, 118 S. Ct. 2246, 141 L. Ed. 2d 615 (1998)(Scalia, J., dissenting). Under
traditional principles of Anglo-American criminal law, the elements of an offense
were defined in the same way for all constitutional purposes, including both the
Fifth Amendment's prohibition on double jeopardy and the Sixth Amendment's
right to a jury trial. Id. at 737-38. However, the question of how to define the
elements of an offense has generated a number of divided opinions from the United
States Supreme Court over the last several decades. Alleyne, 570 U.S. at 105.
State V. Allen, No. 95454-2
"The principal source of disagreement is the constitutional status of a special sort
offact known as a 'sentencing factor.'" Id.
The term "sentencing factor" was first used by the United States Supreme
Court in McMillan v. Pennsylvania, All U.S. 79, 86, 106 S. Ct. 2411, 91 L. Ed. 2d
67(1986),"to refer to facts that are not found by a jury but that can still increase
the defendant's punishment." Alleyne, 570 U.S. at 105. The Court held that state
legislatures may define facts as sentencing factors, rather than elements, and
further may provide that sentencing factors can be proved to a judge by a
preponderance of the evidence, rather than being proved to a jury beyond a
reasonable doubt. McMillan, All U.S. at 86, 91. In doing so, however, the Court
did not "budge from the position that(1) constitutional limits exist to States'
authority to define away facts necessary to constitute a criminal offense, and (2)
that a state scheme that keeps from the jury facts that 'expos[e][defendants] to
greater or additional punishment,' may raise serious constitutional concern."
Apprendi v. New Jersey, 530 U.S. 466,486, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000)(alterations in original)(citations omitted)(quoting McMillan, All U.S. at
85-88).
The difference between "elements" and "sentencing factors" was first set
forth in McMillan, a case concerning the right to a jury trial. Whether a particular
fact is treated as an element or as a sentencing factor is also critical for double
10
State V. Allen, No. 95454-2
jeopardy purposes because "[t]he Court generally has concluded . . . that the
Double Jeopardy Clause imposes no absolute prohibition against the imposition of
a harsher sentence at retrial after a defendant has succeeded in having his original
conviction set aside." Bullington, 451 U.S. at 438. Thus, unlike elements of an
offense, sentencing factors (and sentences themselves) are generally not subject to
the Fifth Amendment's double jeopardy clause.
In Bullington, the United States Supreme Court "established a 'narrow
exception' to the general rule" for the sentencing phase of capital murder trials.
Mange, 524 U.S. at 730. The Court reasoned that unlike a typical sentencing
hearing, the sentencing phase of a capital murder trial had "the hallmarks of the
trial on guilt or innocence." Bullington, 451 U.S. at 439. That is, rather than
evidence being presented informally to a judge who had discretion to select a
sentence from a wide range authorized by statute, there was an adversarial process
that presented evidence to a jury, which was charged with making a binary choice
based on proof beyond a reasonable doubt. Id. at 438.
Later, in Mange,the United States Supreme Court declined to apply
Bullington to proof of a prior conviction in a noncapital case, even if similar
sentencing procedures were used. 524 U.S. at 724-25. The Court determined that
double jeopardy protections did not apply in that context because unlike in a
capital case, the trial-like sentencing procedures used to prove prior convictions at
11
State V. Allen, No. 95454-2
issue in Monge were a matter of"legislative grace, not constitutional command."
Id. at 734. Thus, whether a fact could be treated as a sentencing factor for double
jeopardy purposes was directly linked to the question of whether that fact was
constitutionally required to be treated as an element for jury trial purposes.
It remains true that proof of a prior conviction does not require trial-like
procedures or proof beyond a reasonable doubt. Alleyne, 570 U.S. at 111 n.1.
However,that is not the case for aggravating circumstances like those at issue here.
As discussed below, full jury trial procedures for RCW 10.95.020 aggravating
circumstances are no longer a matter of legislative grace. They are now a
constitutional command.
2. Constitutional limits on "sentencing factors" for Sixth Amendment
purposes have been refined over time
As noted above, state legislatures' authority to distinguish sentencing factors
from elements for Sixth Amendment purposes is subject to constitutional
limitations. McMillan, 477 U.S. at 86, 91. The United States Supreme Court first
addressed what those limitations are in Apprendi. 530 U.S. 466. The Court has
since clarified and refined its holdings, ultimately reaching the conclusion that a
fact other than a prior conviction "that, by law, increases the penalty for a crime is
an 'element' that must be submitted to the jury and found beyond a reasonable
doubt." Alleyne, 570 U.S. at 103. Because an understanding ofthe way in which
Sixth Amendment constitutional law has developed is necessary for our double
12
State V. Allen, No. 95454-2
jeopardy analysis, we briefly discuss the line of cases leading up to the Supreme
Court's decision in Alleyne.
The first such case, Apprendi, concerned New Jersey's hate crimes statute,
which increased the maximum sentence for a crime if a judge found by a
preponderance of the evidence that the crime was committed '"with a purpose to
intimidate an individual or group of individuals because of race, color, gender,
handicap, religion, sexual orientation or ethnicity.'" 530 U.S. at 469(quoting
former N.J. Stat. Ann. § 2C:44-3(e)(1995)). Analyzing the common law history
of which facts must be proved to a jury, the United States Supreme Court
determined that there was no "principled basis" for treating a fact that increased the
maximum authorized term of imprisonment differently from the elements
constituting the base offense. Id. at 476. In so ruling, the Court reasoned that
"when the term 'sentence enhancement' is used to describe an increase beyond the
maximum authorized statutory sentence, it is the functional equivalent of an
element of a greater offense than the one covered by the jury's guilty verdict." Id.
at 494 n.l9(emphasis added). Therefore, it must be submitted to a jury and proved
beyond a reasonable doubt.
The line of cases that followed Apprendi applied its rule in a number of
other contexts. See Ring v. Arizona 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d
556(2002)(capital punishment); Blakely v. Washington, 542 U.S. 296, 124 S. Ct.
13
State V. Allen, No. 95454-2
2531, 159 L. Ed. 2d 403 (2004)(state sentencing guidelines); United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005)(federal
sentencing guidelines); S. Union Co. v. United States, 567 U.S. 343, 132 S. Ct.
2344, 183 L. Ed. 2d 318 (2012)(criminal fines). However, state legislatures
retained the authority to classify facts as sentencing factors if they increased only
the minimum penalty, rather than the maximum penalty. Harris, 536 U.S. at 550.
Such sentencing factors could still be found by a judge by a preponderance ofthe
evidence. Id.
This changed with the Supreme Court's holding in Alleyne, which overruled
Harris and held that "there is no basis in principle or logic to distinguish facts that
raise the maximum from those that increase the minimum." 570 U.S. at 116.
Alleyne also did away with ApprendVs "functional equivalent" language. "The
essential point is that the aggravating fact produced a higher range, which, in turn,
conclusively indicates that the fact is an element of a distinct and aggravated
crime. It must, therefore, be submitted to the jury and found beyond a reasonable
doubt." Id. at 115-16 (emphasis added).
Thus, a "sentencing factor" is defined as a fact that can increase the sentence
for a crime but does not need to be proved to a jury beyond a reasonable doubt,
such as proof of a prior conviction. Over time, the United States Supreme Court
has substantially limited the types offacts that may be designated as sentencing
14
State V. Allen, No. 95454-2
factors for purposes of the Sixth Amendment's jury-trial right. In accordance with
Alleyne, the legislature's designation of a fact as a sentencing factor no longer
controls. Now, a fact other than proof of a prior conviction that increases the
minimum penalty authorized by law must be treated as an element, not a
sentencing factor, for Sixth Amendment purposes. It is clear that the RCW
10.95.020 aggravating circumstances are elements for Sixth Amendment purposes
because they are not limited to proof of a prior conviction and, by law, they
increase the minimum penalty for first degree murder.
3. A plurality of the United States Supreme Court has stated that
elements are defined in the same way for purposes ofthe jury-trial
right and the double jeopardy clause
As discussed above, the United States Supreme Court held in Motage that
double jeopardy principles do not apply to sentencing factors, such as proof of
prior convictions, outside the context of capital murder cases. 524 U.S. at 734.
However, Monge was decided before Apprendi and subsequent cases in which the
constitutional limits of which facts may be designated as sentencing factors for
Sixth Amendment purposes were clearly set forth. The Court has not yet issued a
definitive holding as to whether these constitutional limits also apply to the
distinction between sentencing factors and elements for purposes of the Fifth
Amendment's prohibition on double jeopardy, but a plurality of the Court has
indicated that they do.
15
State V. Allen, No. 95454-2
In Sattazahn v. Pennsylvania, the United States Supreme Court looked at the
double jeopardy implications for sentencing factors after Apprendi, but it did not
ultimately resolve the question. 537 U.S. 101. The defendant in Sattazahn was
convicted of first degree murder, but the sentencing jury hung on the existence of
an aggravating circumstance that would have authorized the death penalty. Id. at
103-05. The trial court therefore entered a life sentence in accordance with
Pennsylvania law. Id. at 105. The conviction was overturned, and on remand, the
Commonwealth again sought the death penalty on the basis of the same aggravator,
as well as a second one introduced at the new trial. Id. The question before the
Supreme Court was whether the Commonwealth was barred from retrying the
aggravator or from seeking the death penalty on double jeopardy grounds. Id.
The majority held that a hung jury was not an acquittal on the aggravating
circumstance, and therefore jeopardy had not terminated on the fact. Id. at 109.
Consequently, it could be realleged at the second trial as a basis for imposing the
death penalty. Id. at 116.
Three of the five justices in the majority opined that if the jury had acquitted
Sattazahn of the aggravating circumstance, double jeopardy principles would have
barred retrial of that fact.^ Id. at 112 (plurality opinion). The plurality stated,"We
^ The four dissenting justices would have held that jeopardy terminated when the trial
court entered the life sentence and therefore did not discuss how aggravating circumstances
16
State V. Allen, No. 95454-2
can think of no principled reason to distinguish, in this context, between what
constitutes an offense for purposes of the Sixth Amendment's jury-trial guarantee
and what constitutes an 'offence' for purposes of the Fifth Amendment's Double
Jeopardy Clause." /d at 111. In light ofthe case history discussed above, we
agree.
Bullington and Monge clearly indicate that whether a fact is an element for
Fifth Amendment purposes depends on whether that fact is an element for Sixth
Amendment purposes, that is, whether the constitution requires that the fact be
proved to a jury beyond a reasonable doubt. Subsequent cases have clarified the
test for determining what constitutes an element for Sixth Amendment purposes,
but the United States Supreme Court has not indicated any intent to untether the
definitions of an element for Fifth and Sixth Amendment purposes. The plurality
in Sattazahn makes it clear that the Court is unlikely to do so, and we can find no
case in our own jurisprudence that draws the distinction between elements for Fifth
and Sixth Amendment purposes in a logically sound and intellectually honest way.
4. Our case law after Sattazahn and Alleyne has not addressed the
precise issue before us
Our case law has long viewed aggravating circumstances as sentencing
factors not subject to double jeopardy, but "[w]e have yet to fully weave Apprendi
should be treated for double jeopardy purposes. Sattazahn, 537 U.S. at 118 (Ginsburg, J.,
dissenting).
17
State V. Allen, No. 95454-2
into the fabric of our case law." State v. McEnroe, 181 Wn.2d 375, 389, 333 P.3d
402(2014). This is equally true of Alleyne. In a handful of cases, we have opined
that the Apprendi line of cases had no effect on how we view aggravating
circumstances for double jeopardy purposes. However, in each case the facts were
distinguishable or the double jeopardy discussion was not central to our holding,
and none of these cases had the benefit of Alleyne.
For instance, in a case similar to Sattazahn, we held that a jury non-finding
on an aggravating circumstance did not constitute an acquittal and, thus, that
double jeopardy did not prevent retrial ofthe aggravating circumstance. State v.
Benn, 161 Wn.2d 256, 264, 165 P.3d 1232(2007). Because Allen was actually
acquitted of the aggravating circumstances at his first trial, this case is clearly
distinguishable.
In other opinions, we have indicated that the Apprendi line of cases does not
affect the definition of an element for double jeopardy purposes, but doing so was
not necessary to our decisions. For instance, in State v. Eggleston, the defendant
was acquitted of first degree murder, but the jury returned a special verdict form on
an aggravating circumstance relating to the first degree murder charge anyway.
164 Wn.2d 61, 66-67, 187 P.3d 233 (2008). We held that the special verdict form
did not preclude consideration of the same aggravating circumstance at a later
resentencing, on either double jeopardy or collateral estoppel grounds, because the
18
State V. Allen, No. 95454-2
jury's answer to the special verdict was unnecessary, irrelevant, and in violation of
the court's instructions, so we declined to consider it. Id. at 73. Thus, although we
indicated that double jeopardy did not apply because the death penalty was not at
issue, there was in fact no acquittal of the aggravating circumstance that would
have implicated double jeopardy principles.
In State v. Kelley, we considered whether imposition of a firearm
enhancement where use of a firearm was an element of the underlying offense
violated the double jeopardy prohibition on multiple punishments for the same
offense, 168 Wn.2d at 74, We summarily dismissed that argument, holding that
"[ijfthe legislature intends to impose multiple punishments, their imposition does
not violate the double jeopardy clause," Id. at 77, We then discussed a "not
entirely clear" argument by Kelley that "because sentencing factors are treated as
'elements[]' [of] the 'offense'" under the Apprendi line of cases, the firearm
enhancement was "an 'element' of a greater offense and therefore creates
unintended, redundant punishment," Id. at 80-81, We concluded that since "none
of[the Apprendi cases] concern the double jeopardy clause," their holdings did not
apply, and we assigned "no weight" to the plurality in Sattazahn. Id. at 82,
However,this discussion was unnecessary to our holding, and Kelley did not
concern the same legal question presented here, Kelley claims he was wrongfully
subjected to multiple punishments, while Allen faces multiple prosecutions.
19
State V. Allen, No. 95454-2
Finally, as noted above in the discussion of the special verdict forms used in
Allen's trial, State v. Guzman Nunez held that juiy unanimity is required for
acquittal of an aggravating circumstance. 174 Wn.2d at 719. We rejected our
previous nonunanimity rule from Goldberg as incorrect because it was
unsupported by authority and conflicted with our precedent. Id. at 713-14. We
further held that the nonunanimity rule was harmful because it was potentially
confusing and could allow juries to acquit on aggravating circumstances based on
"an unwillingness to fully explore the reasons for any disagreement," rather than
full and thorough deliberations. M at 718. Citing Mange and Eggleston, we also
stated that the nonunanimity rule did not serve its purported purposes ofjudicial
economy and finality because double jeopardy does not preclude retrial on
aggravating circumstances outside the death penalty context. Id. at 717-18.
However, as discussed above, Eggleston did not require us to reach that issue.
Guzman Nunez did not purport to reexamine the scope of Mange's holding in light
of the Apprendi line of cases, and further did not have the benefit ofAlleyne, which
was decided a year later.
In sum, although our cases have previously indicated that RCW 10.95.020
aggravating circumstances are not elements for purposes of the Fifth Amendment's
double jeopardy clause, the legal underpinnings for those statements have changed
20
State V. Allen, No. 95454-2
dramatically. We have not fully considered the impact of these changes until
today.
5. The trial court properly dismissed the RCW 10.95.020 aggravating
circumstances on double jeopardy grounds
Applying the principles from Alleyne to the facts before us, it is clear that the
trial court properly dismissed the RCW 10.95.020 aggravating circumstances on
double jeopardy grounds. Neither aggravating circumstance was limited to proof
of a prior conviction, and either one would have increased the minimum sentence
from a term of years to one of life imprisonment without the possibility of release
or parole. As such, the constitution requires the aggravating circumstances to be
proved to a jury beyond a reasonable doubt. The aggravating circumstances
therefore no longer meet the definition of"sentencing factors" for Sixth
Amendment purposes. They are elements.
Like the Sattazahn plurality, we can discern no principled basis for reaching
a different conclusion in the double jeopardy context. We therefore hold that
RCW 10.95.020 aggravating circumstances are elements of the offense of
aggravated first degree murder for double jeopardy purposes. The jury acquitted
Allen of both aggravating circumstances on all four counts in his first trial.
Jeopardy therefore terminated on those circumstances, and the State is
constitutionally barred from retrying them.
21
State V. Allen, No. 95454-2
Conclusion
The special verdict forms combined with the polling of the jury show that
the first jury unanimously acquitted Allen of the RCW 10.95.020 aggravating
circumstances. The trial court properly dismissed these aggravating circumstances
at the second trial on double jeopardy grounds, and we therefore affirm the Court
of Appeals and remand for further proceedings consistent with this opinion.
22
State V. Allen, No. 95454-2
WE CONCUR:
^ K\aaM /
7
7
n Z^iey
T
23
State v. Allen
Combined Opinion