State v. Ramos

*657¶1

The issue before us is whether the trial court correctly determined that the defendants may be tried on a charge of first degree manslaughter. We hold that they may be tried for that charge and, therefore, affirm the trial court.

Alexander, C.J.

I

¶2 In 1997, Mario Medina lived with his sister, Maria, and her ex-husband, Felipe Ramos. On the evening of September 13,1997, Ms. Medina showed up late for work at a motel. The motel manager, Joe Collins, confronted her about her tardiness and then sent her home early. After Ms. Medina recounted to her brother and Ramos what had happened to her at the motel, Ramos and Mario Medina decided to confront Collins. Before driving to the motel, the two men obtained a gun and ammunition for it. Upon arriving at the motel, Ramos parked the car in the far corner of the parking lot near an exit, backing it up next to a dumpster. Ramos and Medina then went to Collins’ apartment and knocked on the door. When Collins answered, Medina asked him if he “had a problem with Maria.” State v. Ramos, 124 Wn. App. 334, 336, 101 P.3d 872 (2004). Before Collins could answer the question, either Ramos or Medina shot him in the head.1 Collins died from the gunshot wound.

¶3 The State charged both Ramos and Medina with first degree murder for the killing of Collins. At trial, in addition to instructing the jury on first degree murder, the trial judge instructed on the lesser degree offense of second *658degree murder by the alternative means of intentional murder and felony murder predicated on assault. The jurors were instructed to consider second degree murder only if they acquitted the defendants of first degree murder or if they could not agree on that crime after full and careful consideration. The jurors were further instructed that they need not be unanimous as to either alternative means in order to find the defendants guilty of second degree murder. When the jurors returned their verdict, they left the first degree murder verdict form blank and found Ramos and Medina each guilty of the lesser charge, second degree murder. They additionally found that the defendants were armed with a firearm for purposes of the firearm enhancement.

¶4 After the jury reached its verdict, the State requested that the jury answer a special interrogatory regarding the alternative means for second degree murder. The interrogatory asked whether the jurors unanimously agreed that intentional murder had been proved beyond a reasonable doubt. It also asked whether the jury unanimously agreed that felony murder had been proved beyond a reasonable doubt. As to each of these questions, the jury was asked to answer either “yes” or “no.” While considering the special interrogatory, the jury submitted the following written questions to the trial court: “(1) If we answer no to 2a [(intentional murder)] does that mean that we unanimously agree intent did not occur or exist? (2) Does answering no to 2a [(intentional murder)] indicate that we could not unanimously agree on intent? Please answer seperately [sic].” Clerk’s Papers (CP) at 135.

¶[5 The trial court responded “no” to the first question and “yes” to the second question. Id. Following receipt of the trial court’s answers to its questions, the jury answered the special interrogatory “no” as to intentional murder, and “yes” as to felony murder. CP at 178. The defendants subsequently received standard-range sentences.

¶6 On appeal, the Court of Appeals, Division One, vacated the defendants’ convictions based on our decision in *659In re Personal Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002). Ramos, 124 Wn. App. at 343. Because the State indicated that upon remand it intended to recharge the defendants with first degree manslaughter, the Court of Appeals addressed the defendants’ claim that the mandatory joinder rule prohibited the State from pursuing that charge. Id. at 338. The Court of Appeals concluded that the mandatory joinder rule did not prohibit the State from charging the defendants with manslaughter. Id. at 342-43. However, it remanded the case back to the trial court for further proceedings, indicating that other “factors may be relevant,” perhaps thinking of a double jeopardy issue. Id. at 343. Neither the State nor the defendants appealed that decision.

¶7 On remand, the State did as it indicated it would and charged each of the defendants with first degree manslaughter.2 The defendants then moved to dismiss the charge against them based on the mandatory joinder rule. Medina added double jeopardy grounds to his motion. The trial court denied the motions and certified the matter to us for direct review. See RAP 2.3(b)(4); CP at 75-76, 89, 127. We granted review.

II

¶8 The defendants contend that the jury in the prior trial actually or impliedly acquitted them of second degree murder and, consequently, double jeopardy principles bar recharging them with the lesser included offense of manslaughter.3 Double jeopardy “protects against a second prosecution for the same offense after acquittal.” North *660Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989). The well-settled alternative means analysis that applies in this case dictates that

where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means [submitted to the jury].

State v. Kitchen, 110 Wn.2d 403, 410, 756 P.2d 105 (1988) (citing State v. Whitney, 108 Wn.2d 506, 739 P.2d 1150 (1987); State v. Franco, 96 Wn.2d 816, 639 P.2d 1320 (1982); State v. Arndt, 87 Wn.2d 374, 553 P.2d 1328 (1976)). “In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt.” Id. at 410-11 (citing Franco, 96 Wn.2d at 823 (citing State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980))). If the alternatives submitted to the jury truly describe alternative means of committing a single crime, rather than separate crimes, jury unanimity as to each alternative mean is not required under either the state or federal constitution. State v. Fortune, 128 Wn.2d 464, 909 P.2d 930 (1996); see also Schad v. Arizona, 501 U.S. 624, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991); State v. Williams, 136 Wn. App. 486, 150 P.3d 111 (2007).

¶9 The alternative means principle dictates that when a jury renders a guilty verdict as to a single crime, but one of the alternative means for committing that crime is later held to be invalid on appeal and the record does not establish that the jury was unanimous as to the valid alternative in rendering its verdict, double jeopardy does not bar retrial on the remaining valid alternative mean. State v. Joy, 121 Wn.2d 333, 345-46, 851 P.2d 654 (1993); State v. Bland, 71 Wn. App. 345, 358, 860 P.2d 1046 (1993), overruled in part on other grounds by State v. Smith, 159 *661Wn.2d 778, 154 P.3d 873 (2007); State v. Gillespie, 41 Wn. App. 640, 645-46, 705 P.2d 808 (1985). This is the case even when one alternative mean has been reversed on appeal due to a finding of insufficient evidence, a finding that has the same double jeopardy implications as an outright acquittal in other circumstances. See Burks v. United States, 437 U.S. 1, 16, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978); State v. DeVries, 149 Wn.2d 842, 853, 72 P.3d 748 (2003).

f 10 Intentional murder and felony murder are alternative means of committing the crime of second degree murder. State v. Berlin, 133 Wn.2d 541, 552-53, 947 P.2d 700 (1997). In the instant case, there was sufficient evidence to sustain a conviction for second degree murder under each of these alternative means. Specifically, substantial evidence supported the alternative mean of intentional murder. In this regard, there was evidence that (1) Ramos and Medina obtained a gun and ammunition prior to confronting Collins; (2) Ramos and Medina drove to the motel and, upon arriving, parked the car near an exit, backing it next to a dumpster; and (3) either Ramos or Medina shot Collins in the head from point-blank range. Accordingly, the trial court correctly and explicitly instructed the jurors that they need not be unanimous as to either alternative in order to find the defendants guilty of second degree murder. In responding to the special interrogatory regarding alternative means, the jurors indicated that they were unanimous as to felony murder but were not unanimous as to intentional murder. The fact that the jurors were not unanimous as to the intentional murder alternative is of no consequence here for double jeopardy purposes since they were properly instructed that they need not be unanimous as to either alternative. The jurors’ response to the special interrogatory and their questions of the trial court did not amount to an express or implied acquittal of the defendants. So long as the jurors were unanimous as to the crime of second degree murder — which they were — their unanimity as to either alternative mean was not necessary.

f 11 Finally, because jeopardy continues for second degree intentional murder and manslaughter is a lesser *662included offense of second degree intentional murder, the mandatory joinder rule does not prohibit retrial for the first degree manslaughter charge. We, therefore, affirm the trial court’s denial of the defendants’ motion to dismiss the charge.

C. Johnson, Chambers, Owens, Fairhurst, and J.M. Johnson, JJ., and Bridge and Kulik, JJ. Pro Tem., concur.

Medina confessed to shooting Collins but later recanted his confession. At trial, each claimed that the other had obtained the gun and shot Collins.

Although the State indicated at oral argument here and in its respondent’s brief at 13 that the defendants should be retried for second degree intentional murder, that question is not before us since the State recharged them with only-first degree manslaughter.

As we observe above, only Medina raised this issue at the trial court. CP at 68-74. Ramos, however, indicated in the reply brief of the petitioner that he joined in the argument that double jeopardy prevents the defendants from being tried for first degree manslaughter. Reply Br. of Pet’r at 3.