¶33 The majority says Gary Benn can be found guilty of an aggravating factor although he was acquitted of it 17 years ago. I disagree. The United States Supreme Court has made clear an aggravating *Page 271 factor is equivalent to an element of a crime, and when one is charged with both an aggravator and with an underlying crime, it constitutes a greater aggravated crime. Therefore, double jeopardy applies. When Gary Benn was originally convicted of murder in 1990, the jury left the verdict form blank for the "single act" aggravating factor. Unless attended by some disagreement amongst the jury members, a blank verdict form is without question an implied acquittal. But the State ignored this and once again charged Benn with the single-act aggravator. This violates the Fifth Amendment to the United States Constitution.
¶34 The federal constitution provides, "[n]o person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb." U.S. CONST. amend. V.5 This is clear, unambiguous language. By simply applying the plain meaning of the Fifth Amendment, it is clear the majority's holding violates Benn's constitutional right; he is subject to the same offense — murder with a single-act aggravator — and twice put in jeopardy for that offense, initially threatened with death and now with life in prison.
¶35 But both federal and state courts have unfortunately developed a double jeopardy jurisprudence somewhat detached from the Fifth Amendment's language. We are now more reliant on parsing the meaning of particular elements than applying the plain meaning of the constitutional text in a straightforward manner. But even within the context of this analysis, the State clearly violated Benn's double jeopardy rights.
¶36 A defendant is entitled to protection against double jeopardy if: (1) jeopardy has attached, (2) jeopardy has terminated, and (3) the State seeks to put him in jeopardy for the same crime or offense. First, jeopardy attached when Benn's jury was originally empaneled to hear arguments concerning the single-aggravating factor. Second, the jury's *Page 272 silence on the aggravator terminated jeopardy. Green v.United States, 355 U.S. 184, 188, 78 S. Ct. 221,2 L. Ed. 2d 199 (1957); State v. Ervin, 158 Wn.2d 746, 753-54,147 P.3d 567 (2006). With nothing more, silence acts as an implied acquittal that terminates jeopardy. If there is formal disagreement entered on the record then there is no acquittal, implied or actual. State v. Daniels, 160 Wn.2d 256,264, 156 P.3d 905 (2007) ("When the jury cannot decide a verdict, and disagreement is formally entered onto the record, then the State's one bite continues and the defendant can be retried."). But there was no such disagreement here so jeopardy terminated. And third, the State put Benn in jeopardy for the same aggravator by charging him with it a second time.
¶37 The State argues an aggravating factor at a sentencing proceeding is not tantamount to an element of a crime, and therefore jeopardy concerns are not implicated. The United States Supreme Court has roundly rejected this argument. InRing v. Arizona, 536 U.S. 584, 609, 122 S. Ct. 2428,153 L. Ed. 2d 556 (2002), the Court said that in the context of a defendant's Sixth Amendment right to a jury trial, sentencing factors are to be treated as elements of a crime. "`[W]hen 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 605 (quoting Apprendi v New Jersey, 530 U.S. 466, 494 n. 19, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)); see alsoid. at 609 ("Because Arizona's enumerated aggravating factors operate as `the functional equivalent of an elementof a greater offense,' the Sixth Amendment requires that they be found by a jury." (emphasis added) (quotingApprendi, 530 U.S. at 494 n. 19)). Merely using the term "factor" or "aggravator" does not provide a legitimate reason for not treating the jury's finding as an element of an aggravated crime. We are not beholden to the legislature's semantic choice nor can the State overcome a defendant's constitutional rights by labeling an element as an aggravator. *Page 273
¶38 The majority notes the State's reliance on Polandv. Arizona, 476 U.S. 147, 106 S. Ct. 1749,90 L. Ed. 2d 123 (1986). Majority at 262-63 (citing id.). ButPoland was limited to its facts, and its holding likely does not survive Ring. Poland was decided in the context of an Arizona statute that allowed judges to act as sole fact finders for aggravating and mitigating factors in death penalty cases. Ring, 536 U.S. at 609, held this sentencing scheme was unconstitutional when it held sentencing factors are functionally equivalent to criminal elements.
¶39 The majority also relies on Sattazahn v.Pennsylvania, 537 U.S. 101, 123 S. Ct. 732,154 L. Ed. 2d 588 (2003) (plurality opinion), to suggest Poland survived Ring's clearly contrary holding. The majority says the Sattazahn Court cited Poland with approval. Majority at 263-64. But the Sattazahn Court mentioned Poland only in the context of discussing other double jeopardy cases. It never cited it with approval or suggested its holding was still good law. Indeed, the Court noted how Poland is factually distinguishable from its other double jeopardy cases: "We distinguishedBullington6 and Rumsey7 on the ground that in Poland, unlike in those cases, neither the judge nor the jury had `acquitted' the defendant in his first capital-sentencing proceeding by entering findings sufficient to establish legal entitlement to the life sentence."Sattazahn, 537 U.S. at 108-09. Here we are concerned with whether the jury acquitted the defendant, and so,Poland, even if its narrow holding survivedRing, clearly is not relevant to us today.
¶40 Sattazahn does remind us jeopardy has not terminated if a conviction is overturned on appeal: "Where, as here, a defendant is convicted of murder and sentenced to life imprisonment, but appeals the conviction and succeeds in having it set aside, we have held that jeopardy has not terminated, so that the life sentence imposed in connection with the initial conviction raises no double-jeopardy bar to *Page 274 a death sentence on retrial." Id. at 106. But here Benn was essentially prosecuted for two separate crimes. As theRing Court said, "`If the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact[,] . . . the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny. The aggravating fact is an element of the aggravated crime.'" Ring,536 U.S. at 605 (alterations in original) (quoting Apprendi,530 U.S. at 501 (Thomas, J., concurring)); see alsoSattazahn, 537 U.S. at 112 (plurality) ("`[M]urder plus one or more aggravating circumstances' is a separate offense from `murder' simpliciter"). According to this analysis, Benn was convicted of first degree murder with the common-scheme aggravator and acquitted of first degree murder with the single-act aggravator.8 And the State cannot now revive its case pertaining to that charge. It had its chance and lost.
¶41 Indeed, Sattazahn works against the majority. The Court tells us "an `acquittal' at a trial-like sentencing phase . . . is required to give rise to double-jeopardy protections." Sattazahn, 537 U.S. at 107. A plurality of the Sattazahn Court imported Ring's reasoning into a double jeopardy context:
Id. at 111-12 (plurality) (citations omitted). The majority quotes from this language but claims it applies, if at all, only in cases of an actual acquittal. Majority at 263-64. But we treat implied acquittals exactly the same as an actual acquittal. Ervin, 158 Wn.2d at 753 ("This court has held that if a jury considering multiple charges renders a verdict as to one of the charges but is silent on the other charge, such action constitutes an implied acquittal barring retrial on those charges."). And the majority offers no explanation for making an exception because Benn was charged with a capital crime as opposed to any other crime. The most it offers is the State can seek the death penalty on retrial if the first jury sentenced him to death. But the first jury sentenced Benn to death based on the common-scheme aggravator, and therefore the State can seek death based only on that aggravated charge. If anything, the specter of the death penalty compels us to be even more vigilant of Benn's constitutional rights.In Ring v. Arizona, we held that aggravating circumstances that make a defendant eligible for the death penalty "operate as the `functional equivalent of an element of a greater offense.'" [Ring, 536 U.S.] at 609. We can think of no principled reason to distinguish, in this context, between what constitutes an offense for purposes of Sixth Amendment's jury-trial guarantee and what constitutes an "offence" for purposes of the Fifth Amendment's Double Jeopardy Clause. In the post-Ring world, the Double Jeopardy Clause can, and must, apply to some capital-sentencing proceedings consistent with the text of the Fifth Amendment. If a jury unanimously concludes that a *Page 275 State has failed to meet its burden of proving the existence of one or more aggravating circumstances, double-jeopardy protections attach to that "acquittal" on the offense of "murder plus aggravating circumstance(s)."
¶42 A jury was given a full and complete chance to find the single-act aggravator but remained silent. This silence acts as an acquittal that terminated jeopardy. The State should not, over a decade later, get a second chance now.
¶43 I dissent.
C. JOHNSON, J., concurs with SANDERS, J.