In re Pers. Restraint of Moi ( 2015 )

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of the Personal )
Restraint of ) No. 89706-9
)
)
MATHEWWILSONMOI, ) En Bane
)
Petitioner. ) Filed OCT 2 9 2015
)
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GONZALEZ, J.-It is a bedrock principle of constitutional law that
"[n]o person shall ... be twice put in jeopardy for the same offense."
WASI-L CONST. art. I, § 9. In 2006, Mathew Moi was tried for the murder of
Keith McGowan and for unlawful possession of the gun that killed
McGowan. No physical evidence tied Moi to the gun, and perhaps because
of that the jury was unable to reach a verdict on the murder charge. Based
on the same evidence, Moi was acquitted of unlawful possession of the gun.
On its second try, the State secured a murder conviction, still arguing that
McGowan was killed with the gun Moi was acquitted of possessing. The
State concedes that the same issue of ultimate fact was decided in both trials
but argues it would be unjust to apply double jeopardy against it because it
In re Pers. Restraint of Moi, No. 89706-9
was surprised by Moi' s testimony in the first trial that someone else shot
McGowan and because Moi had moved to sever the two charges. Given the
State's concession, we grant the personal restraint petition.
FACTS
On October 19, 2004, someone shot and killed McGowan when he
went to his front door. Suspicion soon fell on Moi. Based on witness
testimony that placed Moi at the scene and an ex-girlfriend's statement that
Moi told her he had killed someone that night, Moi was charged with
murder. Moi admitted he was there when McGowan was shot but denied
being the shooter.
The State's crime lab later determined that McGowan was killed by a
gun recovered from a nearby storm drain. No fingerprints or other direct
physical evidence linked the gun to Moi, but the State offered testimony that
suggested Moi had entrusted the gun to friends who had tossed it into the
storm drain.
Moi had prior juvenile convictions for second degree robbery and thus
was not permitted to possess firearms. See RCW 9.41.040. Shortly before
the first trial, the State added a charge of unlawful possession of a firearm
based on the same constellation of facts alleged in the murder charge. Moi
moved to sever the two charges to shield the jury in the murder case from
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the potential prejudicial effect of knowing he had been convicted of second
degree robbery as a juvenile. The State opposed severance, arguing that
severing the charges "would require the State to present the exact same case
a second time." Verbatim Report ofProceedings (VRP) (Oct. 24, 2006) at
236. The State suggested, among other things, that Moi waive his right to a
jury trial and have the firearm charge tried to the bench at the same time the
murder charge was tried to a jury. Ultimately, the parties agreed to do that.
After 10 days of testimony and 13 hours of deliberation, the first jury
was unable to reach a verdict and the judge declared a mistrial. State v. Moi,
noted at 165 Wash. App. 1006, 2011 WL 6825264, at * 1. The trial judge
delayed ruling on the unlawful possession charge to allow briefing on the
possible double jeopardy implications and to allow the parties to have plea
discussions. The parties were unable to reach a plea agreement but agreed
the judge should reach judgment on the unlawful possession charge based on
the evidence already presented. After asking a few questions, the judge
concluded the State had not carried its burden of proof and acquitted Moi of
the charge.
Moi was tried again for murder in 2007. The case was assigned to a
different judge, who allowed the State to present motive evidence the first
judge had excluded. The second jury returned a guilty verdict. Moi's direct
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In re Pers. Restraint of Moi, No. 89706-9
appeal, which did not raise a double jeopardy challenge, was unsuccessful.
!d. Moi, pro se, filed this timely personal restraint petition, arguing that
double jeopardy did not allow him to be tried for murder with a gun he had
been acquitted of possessing. We granted review and assigned counsel. In
re Pers. Restraint of Moi, 182 Wash. 2d 1015 (20 15).
ANALYSIS
"No person shall ... be twice put in jeopardy for the same offense."
WASH. CONST. art. I, § 9; U.S. CONST. amend. V. Our two constitutions
provide the same protection against double jeopardy. In re Pers. Restraint
of Orange, 152 Wash. 2d 795, 815, 100 P.3d 291 (2004) (citing State v.
Goeken, 127 Wash. 2d 95, 100, 896 P.2d 1267 (1995)). We generally review
double jeopardy challenges de novo, but as the party asserting collateral
estoppel, Moi bears the burden of proof. State v. Freeman, 153 Wash. 2d 765,
770, 108 P.3d 753 (2005) (citing State v. Johnston, 100 Wash. App. 126, 137,
996 P.2d 629 (2000)); State v. Williams, 132 Wash. 2d 248, 254, 937 P.2d 1052
(1997) (citing McDaniels v. Carlson, 108 Wash. 2d 299, 303, 738 P.2d 254
(1987)). As this is a personal restraint petition alleging constitutional error,
Moi bears the burden of showing actual and substantial prejudice, which he
satisfies if he shows double jeopardy is violated. In re Pers. Restraint of
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In re Pers. Restraint ofMoi, No. 89706-9
Orange, 152 Wash. 2d at 804, 822 (citing In re Pers. Restraint of Lile, 100
Wn.2d 224,225, 668 P.2d 581 (1983)).
Among many other things, "the Double Jeopardy Clause incorporates
the doctrine of collateral estoppel." Dowling v. United States, 493 U.S. 342,
347, 110 S. Ct. 668, 107 L. Ed. 2d 708 (1990) (citing Ashe v. Swenson, 397
U.S. 436, 90S. Ct. 1189, 25 L. Ed. 2d 469 (1970)). Under the collateral
estoppel doctrine, "when an issue of ultimate fact has once been determined
by a valid and final judgment, that issue cannot again be litigated between
the same parties in any future lawsuit," including a criminal prosecution.
Ashe, 397 U.S. at 443. The Ashe case is illustrative. Several masked men
· had robbed a six-player poker game. Id. at 437. Ashe was initially charged
with robbing just one of the players. Id. at 438. After the jury acquitted
Ashe of robbing that player, the State charged him with robbing another,
"frankly conced[ing] that following the petitioner's acquittal, it treated the
first trial as no more than a dry run for the second prosecution." Id. at 439,
447. The Supreme Court reviewed the evidence presented, concluded that
"[t]he single rationally conceivable issue in dispute before the jury was
whether the petitioner had been one of the robbers," and held that double
jeopardy barred the subsequent prosecution. Id. at 445. The issue of
ultimate fact in that case was whether Ashe had robbed the poker game, not
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In re Pers. Restraint of Moi, No. 89706-9
which player he had robbed. !d. at 446 ("[T]he name of the victim, in the
circumstances of this case, had no bearing whatever upon the issue of
whether the petitioner was one of the robbers."). Once acquitted, the State
could not "constitutionally hale him before a new jury to litigate that issue
again." !d.
Following Ashe, Moi argues that the State was collaterally estopped
from prosecuting him for murder in 2007 when the State's theory of the case
was that he shot the victim with a gun he was acquitted of possessing in
2006. Pet'r's Suppl. Br. at 11 (citing Ashe, 397 U.S. at 446). Collateral
estoppel in Washington has four elements that the party asserting it (here
Moi) must establish:
"( 1) the issue decided in the prior adjudication must be identical with
the one presented in the second; (2) the prior adjudication must have
ended in a final judgment on the merits; (3) the party against whom
the plea of collateral estoppel is asserted must have been a party or in
privity with a party to the prior litigation; and (4) application of the
doctrine must not work an injustice."
Williams, 132 Wash. 2d at 254 (quoting State v. Cleveland, 58 Wash. App. 634,
639, 794 P.2d 546 (1990)). 1 Here, the State concedes that Moi has met the
first three elements. Wash. Supreme Court oral argument, In re Pers.
Restraint of Moi, No. 89706-9 (Sept. 8, 2015), at 15 min., 52 sec. through 17
We stated the elements slightly differently in State v. Tili, 148 Wash. 2d 350, 361, 60 P.3d
1
1192 (2003) (citing Rains v. State, 100 Wash. 2d 660, 665, 674 P.2d 165 (1983)). The
parties do not argue that the differences are material to this case.
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min., 7 sec. 2 Thus, the only question is whether application of the doctrine
will not work an injustice. Williams, 132 Wash. 2d at 254 (quoting Cleveland,
58 Wash. App. at 639).
First, the State argues that applying collateral estoppel would work an
injustice because Moi created the situation by moving to sever the murder
and unlawful possession charges in his first trial. Suppl. Br. ofResp't at 17-
18 (citing Jeffers v. United States, 432 U.S. 137, 154,97 S. Ct. 2207,53 L.
Ed. 2d 168 (1977); Ohio v. Johnson, 467 U.S. 493, 502, 104 S. Ct. 2536, 81
L. Ed. 2d 425 (1984)); Wash. Supreme Court oral argument, supra, at
approximately 20 min.; VRP (Oct. 24, 2006) at 239,241. We find this
unpersuaslVe.
Moi did nothing wrong by seeking severance. The probative value of
Moi' s juvenile criminal history to the murder charge was slight, and its
potential prejudicial effect on the jury was great. See generally State v.
Gunderson, 181 Wash. 2d 916, 923, 337 P.3d 1090 (2014); State v. Smith, 106
Wash. 2d 772, 779-80, 725 P.2d 951 (1986). Nor did he do anything wrong by
acceding to the State's suggestion that he waive his right to a jury on the
unlawful possession charge and have it tried to the bench. Neither of the
2Http://www.tvw.org/index.php?option=com_tvwplayer&eventiD=2015090006. The
State disputed whether the ultimate issues decided were identical in its brief to this court
but conceded that element at oral argument. Wash. Supreme Court oral argument, supra,
at approximately 17 min., 12 sec.; Suppl. Br. ofResp't at 15-16.
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cases the State cites suggest otherwise. In Jeffers, the court held that it
would not apply the "same evidence" rule from Blockburger to cases where
the defendant successfully opposes the government's attempt to try charges
together. 432 U.S. at 139, 144, 153-54 (citing Blockburger v. United States,
284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932)). Moi's motion to sever
was unsuccessful, and his counsel, as a second best option, acceded to the
State's proposal that the unlawful possession charge be tried to the bench.
VRP (Oct. 24, 2006) at 242-43. Further, the ultimate question in Jeffers was
which double jeopardy test applied, not whether it would be inequitable to
apply collateral estoppel. See Jeffers, 432 U.S. at 139, 144. In Johnson, the
defendant was indicted on charges of murder, aggravated robbery,
involuntary manslaughter, and grand theft in the killing of and theft from
one victim. 467 U.S. at 494-95. At arraignment, and over the State's
objection, Johnson pleaded guilty to the lesser charges and sought to dismiss
the greater ones as barred by double jeopardy. !d. at 494. The Supreme
Court rejected the argument because the State had not had its "one full and
fair opportunity to convict those who have violated its laws." Id. at 502
(citing Arizona v. Washington, 434 U.S. 497, 509,98 S. Ct. 824, 54 L. Ed.
2d 717 (1978)). While the court might have been disinclined to reward the
defendants' clever pleading in both cases, neither analysis turned on that
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fact. In both cases, the decision turned on whether a particular double
jeopardy analysis applied under the facts.
Second, the State argues that application of the doctrine would work
an injustice because Moi himself deprived it of a full and fair opportunity to
present its case. Suppl. Br. ofResp't at 19 (citing Standefer v. United States,
447 U.S. 10, 22, 100 S. Ct. 1999, 64 L. Ed. 2d 689 (1980)); see VRP (Nov.
15, 2006) at 66, 109. Standefer observed that "in a criminal case, the
Government is often without the kind of 'full and fair opportunity to litigate'
that is a prerequisite of estoppel." 447 U.S. at 22 (quoting Parklane Hosiery
Co. v. Shore, 439 U.S. 322, 325, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979)).
For the first time during his 2006 trial testimony, Moi stopped blaming one
unknown man for having shot McGowan and instead testified that someone
he knew named J ason3 had committed the murder. Since, the State
contends, it did not know about Jason prior to the first trial, it was deprived
of a full and fair opportunity to investigate or rebut Moi' s testimony.
But it could not have come as a surprise to the State that Moi was
blaming someone else for the shooting. Moi did that from his first
conversation with police. The State had ample opportunity to cross-examine
Moi on why he did not point his finger at Jason before. While more
3
Moi was uncertain of Jason's last name.
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opportunity to investigate this new suspect would doubtlessly have been
helpful to the State, it is a far cry from the situation in Standefer, where the
question was whether the defendant, the head of Gulf Oil Corporation's tax
department, could be convicted of aiding and abetting a United States
Internal Revenue Service (IRS) agent in receiving unlawful compensation
(in the form of vacations paid for by the corporation) after the IRS agent had
been acquitted of wrongdoing. 447 U.S. at 11-12. The United States
Supreme Court declined to extend nonmutual collateral estoppel to the case
for many reasons, including "the simple, if discomforting, reality that
'different juries may reach different results under any criminal statute. That
is one of the consequences we accept under our jury system."' Standefer,
447 U.S. at 25 (quoting Roth v. United States, 354 U.S. 476, 492 n.30, 77 S.
Ct. 1304, 1 L. Ed. 2d 1498 (1957)). But while juries may reach different
results, we are faced here with the fact that Moi was acquitted in 2006 of
possessing the gun that killed McGowan. We do not find the State's
argument that Moi deprived it of a full and fair opportunity to prosecute him
persuasive.
Here, the parties did have a full criminal trial where, at the suggestion
of the State, the trial judge decided one ofthe charges. In Thompson v.
Department of Licensing, we observed that "our case law on this injustice
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In re Pers. Restraint of Moi, No. 89706-9
element is most firmly rooted in procedural unfairness." 138 Wash. 2d 783,
795, 982 P.2d 601 (1999). "'Washington courts look to whether the parties
to the earlier proceeding received a full and fair hearing on the issue in
question."' !d. at 795-96 (quoting In re Marriage of Murphy, 90 Wash. App.
488, 498, 952 P.2d 624 (1998)). Given this full trial; given the fact that in
essence, the State was able to treat its first unsuccessful 2006 prosecution as
a "dry run" for its successful 2007 prosecution, contra Ashe, 397 U.S. at
447; and given the State's concession that the same issue of ultimate fact
was decided in both trials, we find application of collateral estoppel does not
work an injustice.
Our decision is bolstered by a recent Pennsylvania Supreme Court
opinion that found collateral estoppel barred retrial in a factually similar
situation. See Commonwealth v. States, 595 Pa. 453, 938 A.2d 1016 (2007).
There, the defendant, Lawrence States, was the only survivor of a single car
accident that killed two people. !d. at 456. States was charged with several
crimes related to driving under the influence, driving without a license, and
causing the deaths. Id. Two of the charges were for "Accidents Involving
Death or Personal Injury While Not Properly Licensed." Id. Like Moi,
States moved to sever the latter charges since they would expose the jury to
a prejudicial fact: in States's case, the fact he did not have a valid license at
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the time of the accident. I d. As happened here, the parties agreed to try that
charge to the bench simultaneously to a jury trial on the remaining charges.
I d. After the jury deadlocked, the trial court acquitted States of Accidents
Involving Death or Personal Injury While Not Properly Licensed on the
grounds that it was not convinced beyond a reasonable doubt that States was
the driver of the vehicle-a fact critical to all of the charges States faced. Id.
at 457. The Pennsylvania Supreme Court found the State was collaterally
estopped from retrying States on the remaining charges. Id. at 456.
Also bolstering our conclusion is a recent Ninth Circuit opinion,
Wilkinson v. Gingrich, No. 13-56952,2015 WL 5155502 (9th Cir. Sept. 3,
20 15). 4 Wilkinson had been charged with speeding. I d. at *1. He was
4
The relevant collateral estoppel test used in Pe1msylvania and the Ninth Circuit differs
from our own. Those courts engage in the following inquires:
"1) an identification of the issues in the two actions for the purpose of
determining whether the issues are sufficiently similar and sufficiently material in
both actions to justify invoking the doctrine;
"2) an examination of the record of the prior case to decide whether the issue was
'litigated' in the first case; and
"3) an examination of the record of the prior proceeding to ascertain whether the
issue was necessarily decided in the first case."
States, 595 Pa. at 460 (quoting Commonwealth v. Smith, 518 Pa. 15, 540 A.2d 246
(1988)). This test is more favorable to the defendant, as it does not require the court to
consider whether application of the doctrine will work an injustice. See Williams, 132
Wash. 2d at 254. Since the parties do not address the differences between the two tests, this
case does not give us an apt opportunity to explore them. However, we are not
unmindful that should we find for the State, Moi might well be entitled to habeas relief
under this test. See Wilkinson, 2015 WL 5155502; see also Crace v. Herzog, 798 F.3d
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acquitted after testifying that he was not the driver. I d. at * 1-2. While there
was no transcript of the trial, it appears Wilkinson inculpated an English
cousin with a name similar to his own. I d. at *2-3. After an investigation,
the State of California successfully charged Wilkinson with perjury for
falsely testifying in his speeding trial. Id. at *2. Applying the same
collateral estoppel test as the Pennsylvania court, the Ninth Circuit
invalidated Wilkinson's perjury conviction. Id. at *4. The Ninth Circuit
found that "[t]he issue in the first case (whether Wilkinson was the driver)
and the issue in the second case (whether Wilkinson was telling the truth
when he denied being the driver) are both 'sufficiently similar' and
'sufficiently material' for collateral estoppel and the Double Jeopardy
Clause to apply." Id. at *5. "A factfinder's determination that the
government failed to carry its burden on an issue in the first proceeding has
preclusive effect in a subsequent proceeding raising that same issue,
provided that both proceedings are governed by the same standard of proof."
Id. at *6 (citing Charles v. Hickman, 228 F.3d 981, 985-86 (9th Cir. 2000)).
In Pennsylvania and California, as here, the State had its full and fair
opportunity to present its case. It did not prevail. Double jeopardy prevents
840, 843, 846 (9th Cir. 2015) (disapproving of In re Personal Restraint of Crace, 174
Wash. 2d 835, 847, 280 P.3d 1102 (2012) and State v. Grier, 171 Wash. 2d 17, 246 P.3d 1260
(20 11 )).
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In re Pers. Restraint of Moi, No. 89706-9
it from placing the defendant in jeopardy again. Moi has met his burden of
showing actual and substantial prejudice following from this constitutional
error. 5
CONCLUSION
We grant the personal restraint petition and remand to the trial court
for further proceedings consistent with this opinion.
5Since Moi has prevailed on this issue, we do not address the remaining grounds raised in
his personal restraint petition.
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In re Pers. Restraint of Moi, No. 89706-9
WE CONCUR:
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