[Nos. 43326-1-I; 43362-8-I. Division One. November 22, 2004.]
THE STATE OF WASHINGTON , Respondent , v. FELIPE JOSEPH RAMOS , Appellant . THE STATE OF WASHINGTON , Respondent , v. MARIO ALEJANDRO MEDINA , Appellant .
[1] Homicide - Felony Murder - Second Degree Felony Murder - Assault - Predicate Offense - Validity - Statutory Provisions. Assault upon a person who dies as a result of the assault cannot serve as the predicate felony for a charge of second degree felony murder against the perpetrator of the assault under RCW 9A.32.050 (1)(b).
[2] Homicide - Felony Murder - Second Degree Felony Murder - Assault - Predicate Offense - Validity - Applicability of Rule - Cases Not Yet Final. The Supreme Court's holding in In re Pers. Restraint of Andress , 147 Wn.2d 602 (2002) that assault may not serve as the predicate felony for a charge of second degree felony murder applies prospectively to cases that were not yet final for appellate purposes at the time the new rule was announced.
[3] Criminal Law - Trial - Joinder or Severance - Offenses - Mandatory Joinder - "Related" Offenses - Test - In General. Under the mandatory joinder rule (CrR 4.3.1), two or more offenses must be joined if they are related. Offenses are related if they are within the jurisdiction and venue of the same court and are based on the same conduct. "Same conduct" is conduct involving a single incident or episode.
[4] Criminal Law - Trial - Joinder or Severance - Offenses - Prior Trial - Dismissal - "Ends of Justice" - Test. The "ends of justice" exception to the mandatory joinder rule, which allows the State to try a defendant for an offense that is related to an offense for which the defendant has already been tried, applies only in extraordinary circumstances involving matters that are extraneous to the action of the court or that go to the regularity of the proceedings. The exception may apply when truly unusual circumstances arise that are outside of the State's control.
[5] Criminal Law - Trial - Joinder or Severance - Offenses - Prior Trial - Dismissal - "Ends of Justice" - Unusual Circumstances Outside State's Control - Change in Precedent. When a defendant's conviction is vacated based on a recent Supreme Court ruling that departs from a long-standing interpretation of the statute on which the State relied in prosecuting the defendant and, due to the nature of the verdict, the defendant cannot be retried for any of the original charges, the State may subsequently prosecute the defendant for a new, related charge under the "ends of justice" exception to the mandatory joinder rule.
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[6] Criminal Law - Trial - Joinder or Severance - Offenses - Prior Trial - Dismissal - "Ends of Justice" - Determination - Trial Court. Whether the "ends of justice" would be defeated by the dismissal of a criminal charge against a defendant whose prior conviction of a related charge was vacated on appeal ultimately is a determination for the trial court.
Nature of Action: Joint prosecution of two defendants for first degree murder.
Superior Court: The Superior Court for King County, Nos. 97-1-07284-7 and 97-1-07283-9, Michael J. Fox, J., on August 21, 1998, entered judgments on verdicts finding the defendants guilty of second degree felony murder, based on the predicate offense of second degree assault.
Court of Appeals: Holding that a judicial decision issued after the defendants' convictions holding that assault cannot serve as the predicate felony for a charge of second degree felony murder applies prospectively to the defendants' cases and that the State's filing of new manslaughter charges on remand is not barred by the mandatory joinder rule, the court vacates the judgments and remands the case for further proceedings.
Thomas M. Kummerow (of Washington Appellate Project ), for appellant Ramos .
Christopher H. Gibson (of Nielsen, Broman & Koch, P.L.L.C. ), for appellant Medina .
Norm Maleng , Prosecuting Attorney, and Deric Martin and James M. Whisman , Deputies, for respondent .
¶1 ELLINGTON , A.C.J . - The mandatory joinder rule prohibits successive prosecutions for related crimes unless applying the rule would defeat the ends of justice. Here, Felipe Ramos and Mario Medina were charged with first
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degree intentional murder. They were convicted of felony murder as a lesser included offense. Their convictions must be vacated under the recent decision in In re Personal Restraint of Andress ,1 which held the felony murder statutes may not be invoked where assault is the predicate felony.
¶2 The State seeks to retry both defendants on manslaughter charges. The only question posed here is whether the joinder rule prohibits the filing of such charges and requires us to dismiss with prejudice. Andress represented an unexpected change in long standing decisional law and implicates the ends of justice exception to the rule. The convictions are vacated, and we remand for further proceedings consistent with this opinion.
FACTS
¶3 In 1997, Mario Medina lived with his sister Maria and her ex-husband, Felipe Ramos. One day Maria was late for work at Motel 6, and her manager, Joe Collins, sent her home early. Medina and Ramos decided to confront Collins.
¶4 First, they retrieved a gun. Then they drove to the motel, found Collins' apartment, and knocked on his door. When Collins answered, Medina asked him if he had a problem with Maria. Before Collins could answer, either Ramos or Medina shot him in the head.2
¶5 Ramos and Medina were charged with first degree intentional murder and tried jointly. The State pursued an accomplice liability theory. The jury found the defendants guilty of the lesser included offense of second degree felony murder, based on the predicate offense of second degree assault.
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¶6 Both men appealed, raising issues related to the accomplice liability instruction.3 Their appeals were first stayed pending this court's decision on rehearing in State v. Nguyen .4 This stay was lifted after the Supreme Court issued its decision addressing the same accomplice liability instruction in State v. Cronin .5 A second stay was issued pending the Supreme Court's decision addressing harmless error analysis in cases with an improper accomplice liability instruction, State v. Brown .6 Yet another stay was ordered pending the decision in Andress . Finally, a stay was ordered pending the decision in State v. Hanson 7 (holding Andress applies to all cases not yet final). This final stay was lifted in July of this year, and briefing and argument were undertaken on the joinder issue.8
[1, 2]¶7 In Andress , the Supreme Court held that under the felony murder statutes,9 assault cannot serve as the predicate crime for felony murder.10 In Hanson , the court held that its decision in Andress applies to all cases not yet final when Andress was decided.11 Ramos and Medina were convicted of felony murder based on assault, and there has been no final decision on their appeals. The ruling in Andress unambiguously applies to them, and we vacate their convictions.
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DISCUSSION
¶8 The only issue before us is whether the State may institute further proceedings on remand. Double jeopardy prohibits retrial on the original charges. The State seeks to file new charges of manslaughter. Ramos and Medina contend new charges are barred by the mandatory joinder rule.12
[3]¶9 The rule requires that related offenses must be joined for trial. "Offenses are related if they are within the jurisdiction and venue of the same court and are based on the same conduct. 'Same conduct' is conduct involving a single criminal incident or episode."13 A defendant who has been tried for one offense may move to dismiss a later charge for a related offense, and the motion must be granted unless the court finds "that because the prosecuting attorney was unaware of the facts constituting the related offense or did not have sufficient evidence to warrant trying this offense at the time of the first trial, or for
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some other reason, the ends of justice would be defeated if the motion were granted ."14
¶10 The State concedes that the proposed manslaughter charges are related to the felony murder charges. The State maintains, however, that the ends of justice exception applies here.
¶11 Only a few cases have discussed the ends of justice exception. In State v. Carter ,15 lacking any other source of guidance, we analogized to civil rules governing relief from judgment. CR 60(b)(11) allows relief from a judgment for "[a]ny other reason justifying relief from the operation of the judgment."16 We noted that under Washington cases, and under cases interpreting the identical federal provision, Fed. R. Civ. P. 60(b)(6), the rule " 'vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice,' " but that " 'extraordinary circumstances' must be shown to exist to gain relief under Fed. R. Civ. P. 60(b)(6)."17 We held that to invoke the ends of justice exception to the mandatory joinder rule, "the State must show there are 'extraordinary circumstances' warranting its application."18 We then concluded no such circumstances existed in Carter's case:
While we can conceive of a scenario where through no fault on its part the granting of a motion to dismiss under the rule would preclude the State from retrying a defendant or severely hamper it in further prosecution, such is not the case here. The State can retry Carter on the original charge.[19]
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¶12 The Supreme Court adopted and applied the Carter reasoning in State v. Dallas .20 In that case, the State charged a juvenile with third degree possession of stolen property. Then, at the close of its case, the State successfully moved to substitute a charge of third degree theft. On appeal, the State conceded its amendment was untimely; the only issue was whether the reversal should be with or without prejudice. The State sought remand to allow a particularized inquiry into the circumstances surrounding the State's failure to charge the proper crime. The court declined to remand and dismissed with prejudice, observing that the rule operates as a limit on the prosecutor independent of the prosecutor's intent: "Whether the prosecutor intends to harass or is simply negligent in charging the wrong crime, [former] CrR 4.3(c) applies to require a dismissal of the second prosecution."21
¶13 Applying the reasoning in Carter , the Dallas court held that the extraordinary circumstances required to invoke the ends of justice exception "must involve reasons which are extraneous to the action of the court or go to the regularity of its proceedings."22 The court rejected the State's argument because "[t]he case before us involves a very ordinary mistake. Given its facts, there is no credible argument that extraordinary circumstances existed and no reason to allow this case to go back to the trial court."23
[4]¶14 Carter and Dallas leave two clear messages: first, for the exception to apply, circumstances must be extraordinary; and second, those circumstances must be
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extraneous to the action or go to the regularity of the proceedings. This suggests that wherever else the exception may operate, it may apply when truly unusual circumstances arise that are outside the State's control.
[5]¶15 Such is the case here. In requesting instructions on the lesser-included offense of felony murder, the State relied on nearly three decades of cases interpreting the statutes defining murder when death occurs in the course of a felony. In 1966, in State v. Harris ,24 the Supreme Court rejected the argument that the assault merged into the homicide and held the statutes authorized prosecution for felony murder based on assault as the predicate felony. In 1976, the legislature revised the criminal code. In 1977, in State v. Thompson ,25 the court refused to overrule Harris and reaffirmed its rejection of the merger doctrine. In its opinion in Thompson , the court observed that the 1976 revisions did not change the felony murder statutes in any relevant way:
While it may be that the felony murder statute is harsh, and while it does relieve the prosecution from the burden of proving intent to commit murder, it is the law of this state. The legislature recently modified some parts of our criminal code, effective July 1, 1976. However, the statutory context in question here was left unchanged.
The rejection by this court of the merger rule has not been challenged by the legislature during the nearly 10 years since Harris , nor have any circumstances or compelling reasons been presented as to why we should overrule the views we expressed therein.[26]
Later cases continued to reject the merger doctrine where assault was the predicate crime for felony murder.27
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¶16 While these cases reflected a minority view among states that had confronted the issue,28 our high court adhered to the felony murder doctrine with unwavering consistency until 2002. Then, in Andress , the court held the 1976 amendments to the criminal code had never been properly examined and concluded that the legislature did not intend assault to serve as the predicate felony for murder.29
¶17 For the Court to abandon an unbroken line of precedent on a question of statutory construction after more than 25 years is highly unusual, and the decision to do so was certainly extraneous to the prosecutions of Ramos and Medina. This is not a case in which the State negligently failed to charge a related crime or engaged in harassment tactics. Rather, the State filed charges and sought instructions in accordance with long-standing interpretations of state criminal statutes. The fact that the convictions thus obtained must now be vacated is the result of extraordinary circumstances outside the State's control.
¶18 Further, Ramos and Medina cannot be retried on the original charge, because they were implicitly acquitted of first degree intentional murder when the jury returned a verdict on the lesser included offense.30 Nor can they be retried on the lesser included offense of second degree
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intentional murder, because the jury expressly found that the State failed to prove they acted with intent to cause Collins' death.31 Thus, if the ends of justice exception does not apply, Ramos and Medina cannot be prosecuted for killing Joe Collins in the course of an assault.
¶19 This case therefore presents a "scenario where through no fault on its part the granting of a motion to dismiss under the rule would preclude the State from retrying a defendant or severely hamper it in further prosecution."32
[6]¶20 Other factors may be relevant to determining the justice of further proceedings, and whether the ends of justice would be defeated by dismissing manslaughter charges against Ramos and Medina is, in the final analysis, a determination for the trial court. But we hold the mandatory joinder rule does not require this court to dismiss with prejudice now.
¶21 We vacate Ramos' and Medina's convictions and remand for further proceedings consistent with this opinion.33
COX , C.J ., and AGID , J ., concur .