[No. 76802-1. En Banc.]
Argued February 13, 2007. Decided May 3, 2007.
THE STATE OF WASHINGTON, Petitioner, v. CARISSA MARIE DANIELS, Respondent.
Nature of Action: Prosecution for homicide by abuse and second degree felony murder - domestic violence based on the alternate predicate felonies of second degree assault and first degree criminal mistreatment. The charges against the 17-year-old defendant arose following the death of her nine-week-old son that was caused by various injuries inflicted on the child.
Superior Court: After suppressing statements made by the defendant while in police custody because she was not given Miranda warnings before the statements were made, the Superior Court for Pierce County, No. 00-1-05286-5, Brian M. Tollefson, J., on March 22, 2002, entered a judgment on a verdict finding the defendant guilty of second degree felony murder. The jury did not reach a verdict on the homicide by abuse charge.
Court of Appeals: At 124 Wn. App. 830 (2004), the court reversed the judgment and remanded the case for retrial on the charge of second degree felony murder based on the predicate felony of criminal mistreatment, holding that assault cannot serve as the predicate felony for second degree felony murder, that criminal mistreatment can serve as the predicate felony for second degree felony murder, that retrying the defendant on second degree felony murder based on the alternate predicate felony of criminal mistreatment does not subject the defendant to double jeopardy, that sufficient evidence existed to support a finding that the defendant is guilty of criminal mistreatment, that the jury implicitly acquitted the defendant of homicide by abuse, and that the trial court properly suppressed statements made by the defendant to the police before she received Miranda warnings.
Supreme Court: Holding that jeopardy did not terminate on the homicide by abuse charge because there was no implied acquittal, that jeopardy did not terminate on the second degree murder charge because the conviction was reversed for reasons other than insufficient evidence, that the State may retry the defendant for both charges, and that the defendant's unwarned statements were properly excluded, the court affirms the decision of the Court of Appeals in part, reverses it in part, and remands the case for further proceedings.
[1]Criminal Law - Former Jeopardy - Question of Law or Fact - Review - Standard of Review. A criminal defendant's claim of double jeopardy presents a question of law that is reviewed de novo.
[2] Criminal Law - Confessions - Admission as Evidence - Question of Law or Fact - Review - Standard of Review. The admissibility of a confession is a question of law that is reviewed de novo.
[3] Criminal Law - Advisement of Rights - Necessity - Question of Law or Fact - Review - Standard of Review. Whether or when a criminal suspect should have been given Miranda warnings is a question of law that is reviewed de novo.
[4] Criminal Law - Review - Findings of Fact - Failure To Assign Error - Effect. An unchallenged finding of fact entered by a trial court following a criminal trial is a verity before a reviewing court.
[5] Criminal Law - Confessions - Voluntariness - Review - Findings of Fact - Failure To Assign Error - Effect. Unchallenged findings of fact entered by a trial court following a hearing on the admissibility of an out-of-court confession are verities before a reviewing court.
[6] Criminal Law - Former Jeopardy - Constitutional Provisions - State and Federal. The double jeopardy clauses of Const. art. I, § 9 and the Fifth Amendment are interpreted identically.
[7] Criminal Law - Former Jeopardy - Applicability - Test - In General. A criminal defendant is not placed in double jeopardy within the meaning of Const. art. I, § 9 and the Fifth Amendment unless (1) jeopardy previously attached, (2) jeopardy previously terminated, and (3) the defendant is placed in jeopardy anew for the same offense.
[8] Criminal Law - Former Jeopardy - When Jeopardy Terminates - Jury Unable To Agree on Verdict. Jeopardy does not terminate as to a charged offense if the jury fails to agree on a verdict on the charge and the disagreement is evident from the record, such as when a defendant is charged with alternative offenses, the jury is instructed not to consider the second offense unless it finds the defendant not guilty of the first offense or is unable to agree on a verdict on the first offense, and the jury leaves the verdict form blank as to the first offense and returns a verdict on the second offense.
[9] Jury - Deadlock - "Unable To Agree" Instruction - Verdict Form Left Blank - Effect - Jeopardy. In a multicharge prosecution in which the jury is instructed to leave the verdict form blank for any charge on which the jury is unable to agree on a verdict and the jury does, in fact, leave the verdict form blank for one or more of the charges, it may be concluded that the jury could not agree on a verdict as to those charges. The blank verdict form for the charge indicates that the jury was unable to agree on a verdict as to that charge, in which case jeopardy does not terminate on the charge.
[10] Trial - Instructions - Adherence by Jury - Presumption - In General. A jury is presumed to follow the trial court's instructions.
[11] Criminal Law - Former Jeopardy - When Jeopardy Terminates - Conviction - Reversal on Appeal. Jeopardy does not terminate upon the reversal of a conviction on appeal if the reversal is for any reason other than insufficient evidence.
[12] Homicide - Felony Murder - Review - Reversal Based on Invalid Predicate Offense - Alternative Predicates Charged - Retrial - Validity - Sufficiency of Evidence. When a defendant's conviction of felony murder is reversed on appeal because one of two or more charged alternative predicate offenses is invalid as a predicate offense for a charge of felony murder, the defendant may be retried for felony murder based on any of the valid alternative predicate offenses supported by sufficient evidence in the record. Where sufficient evidence supports a valid alternative predicate offense, jeopardy does not terminate on the charge and the defendant may be retried for the charge without being placed in double jeopardy.
[13] Criminal Law - Former Jeopardy - When Jeopardy Terminates - Charge Based on Multiple Predicate Offenses - Conviction Reversed on Appeal - Invalid Predicate Offense - Evidence Supporting Alternative Predicate Offenses. When a defendant's conviction of an offense that was charged on the basis of the defendant's commission of two or more predicate offenses is reversed on appeal based on a ruling that one of the predicate offenses cannot lawfully serve as a predicate for the charged offense, the defendant may be retried for the charged offense based on any of the valid alternative predicate offenses supported by sufficient evidence in the record. Where sufficient evidence supports a valid alternative predicate offense, jeopardy does not terminate on the charge and the defendant may be retried for the charge without being placed in double jeopardy.
[14] Criminal Law - Advisement of Rights - Necessity - Custody - Test. A person is "in custody" for Miranda purposes if, under the circumstances, a reasonable person would not feel at liberty to terminate the interrogation and leave.
[15] Criminal Law - Advisement of Rights - Necessity - Custody - Minor Suspect - Particular Circumstances. A 17-year-old suspect who is questioned by police officers for more than one and one-half hours in a room at a police precinct only one day after funeral services for the suspect's child are held and while the suspect is under the stress of the funeral and is not allowed to be accompanied by a parent is "in custody" for Miranda purposes.
[16] Criminal Law - Confessions - Invalid Confession - Exclusion - Necessity. An unwarned statement made by a criminal suspect while under custodial interrogation must be excluded from evidence.
¶1 SANDERS, J. - We are asked to decide whether the State may retry Carissa Daniels without violating double jeopardy. Daniels was charged with homicide by abuse and second degree murder, predicated on either assault or criminal mistreatment. The jury failed to agree on the homicide by abuse charge but found Daniels guilty of second degree murder. After the Court of Appeals reversed Daniels's murder conviction because it was predicated on assault, it held the State could recharge her on murder predicated on criminal mistreatment but could not retry her on the homicide by abuse charge because the jury's silence acted as an implied acquittal. The Court of Appeals also affirmed the trial court's suppression of statements Daniels made to police before they gave her any Miranda
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) (holding the police must warn any suspect involved in a custodial interrogation of the right to remain silent, that statements may be used against him, and the right to have an attorney present). ¶2 We hold the State may retry Daniels on both charges. Jeopardy has not terminated on the homicide by abuse charge because there was no implied acquittal, and jeopardy has not terminated on the second degree murder charge because the conviction was reversed for reasons other than insufficient evidence. We also affirm the Court of Appeals' exclusion of statements Daniels made before she was given her Miranda warnings. FACTS ¶3 In July 2000 17-year-old Carissa Daniels gave birth to her son Damon. Nine weeks later Damon was dead. Carissa was charged with homicide by abuse and murder in the second degree - domestic violence. The second degree felony murder charge was predicated either on second degree assault or first degree criminal mistreatment. ¶4 At trial the jury was given two verdict forms: verdict form A pertained to the homicide by abuse charge and verdict form B pertained to the second degree murder charge. The jury was instructed to fill in not guilty or guilty on form A if it unanimously agreed on a verdict as to the homicide by abuse charge, otherwise it should leave it blank. Clerk's Papers (CP) at 57 (Jury Instruction 23). Jury Instruction 23 reads, in part: When completing the verdict forms, you will first consider the crime of homicide by abuse as charged. If you unanimously agree on a verdict, you must fill in the blank provided in verdict form A the words "not guilty" or the word "guilty," according to the decision you reach. If you cannot agree on a verdict, do not fill in the blank provided in Verdict Form A. If you find the defendant guilty on verdict form A, do not use verdict form B. If you find the defendant not guilty of the crime of homicide by abuse, or if after full and careful consideration of the evidence you cannot agree on that crime, you will consider the alternatively charged crime of murder in the second degree. . . . ¶5 The jury left form A blank and found Daniels guilty of murder in the second degree. CP at 107-08. Daniels appealed, arguing that after our decision in In re Personal Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002), assault could not be a predicate offense for second degree murder. State v. Daniels, 124 Wn. App. 830, 844, 103 P.3d 249 (2004) (citing Andress, 147 Wn.2d 602). The Court of Appeals agreed, reversed the conviction, and remanded for a new trial. Furthermore, the Court of Appeals held the State could not retry her for homicide by abuse because the jury's silence on that charge acted as an implied acquittal. After the Court of Appeals filed its opinion, we decided State v. Ervin, 158 Wn.2d 746, 147 P.3d 567 (2006), further elaborating on this issue. ¶6 The State petitioned this court for review, seeking to retry Daniels on the homicide by abuse charge and to allow statements Daniels made before she was given Miranda warnings. Daniels cross-petitioned, arguing she cannot be retried for second degree felony murder predicated on criminal mistreatment. On October 6, 2006, we accepted review. ANALYSIS I.THERE WAS NO IMPLIED ACQUITTAL TERMI-NATING JEOPARDY ON DANIELS'S HOMICIDE BY ABUSE CHARGE ¶11 Daniels argues her conviction for second degree murder terminates jeopardy for all charges because the State already had an opportunity to convict her for homicide by abuse and was unsuccessful. Therefore, she claims it is unfair to allow the State to raise the specter of a retrial on this charge if a defendant is successful in reversing the conviction on other included charges. If Daniels's conviction for second degree murder had not been overturned on appeal, then the State would not have been able to retry her for homicide by abuse: [W]here the jury is hung on the greater charge but convicts of the lesser included charge, and the conviction of the lesser included charge is not overturned on appeal, the conviction, once final, terminates jeopardy, and the defendant cannot be retried for the greater charge if it constitutes the same offense for double jeopardy purposes. State v. Linton, 156 Wn.2d 777, 792, 132 P.3d 127 (2006) (Sanders, J., concurring). In Ervin, we accepted the concurrence's reasoning. Ervin, 158 Wn.2d at 758-59. Doubtless, where a jury, although convicting as to some, are silent as to other counts in an indictment, and are discharged without the consent of the accused, . . . the effect of such discharge is "equivalent to acquittal," because, as the record affords no adequate legal cause for the discharge of the jury, any further attempt to prosecute would amount to a second jeopardy, as to the charge with reference to which the jury has been silent. But such obviously is not the case, where a jury have not been silent as to a particular count, but where, on the contrary, a disagreement is formally entered on the record. The effect of such entry justifies the discharge of the jury, and therefore a subsequent prosecution for the offence as to which the jury has disagreed and on account of which it has been regularly discharged, would not constitute second jeopardy. Id. (emphasis added); see also State v. Davis, 190 Wash. 164, 67 P.2d 894 (1937) (quoting same). In Richardson the United States Supreme Court specifically found the failure of a jury to reach a verdict does not terminate the original jeopardy. Richardson, 468 U.S. at 325-26 ("[W]e hold . . . the failure of the jury to reach a verdict is not an event which terminates jeopardy. . . . The Government, like the defendant, is entitled to resolution of the case by verdict from the jury, and jeopardy does not terminate when the jury is discharged because it is unable to agree."). ¶12 During oral arguments, defense counsel pointed to language in Corrado, where the court held: The termination element arises from the idea that the State should have one complete opportunity to convict; in other words, jeopardy should "terminate" when the State has had - but not before the State has had - one full and fair opportunity to prosecute. 81 Wn. App. at 645-46. This is certainly true. And while the State is allowed only one bite at the apple, its one bite is a full one. The Supreme Court has "effectively formulated a concept of continuing jeopardy that has application where criminal proceedings against an accused have not run their full course." Price v. Georgia, 398 U.S. 323, 326, 90 S. Ct. 1757, 26 L. Ed. 2d 300 (1970). When the jury cannot decide on a verdict, and disagreement is formally entered onto the record, then the State's one bite continues and the defendant can be retried. ¶13 The issue before us today is nearly identical to what we considered in Ervin, 158 Wn.2d 746. During oral arguments, Daniels's counsel admitted we could find for Daniels on this argument only if we reversed our unanimous decision in Ervin. ¶14 A jury is presumed to follow the instructions given. Id. (citing State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001)). And both Ervin's and Daniels's juries were similarly instructed to leave form A blank only if they could not agree, otherwise they were to write guilty or not guilty. Id. at 750; CP at 57. And in Ervin because the jury left the verdict form blank and unsigned, we reasoned: the blank verdict forms indicate on their face that the jury was unable to agree. Because the jurors were unable to agree, we cannot consider them to have acquitted Ervin of the greater charges. Thus, Ervin has no acquittal operating to terminate jeopardy. Ervin, 158 Wn.2d at 757 (footnotes omitted). ¶15 The Court of Appeals below found Daniels's jury had been silent and applied the rule of lenity to hold that between assuming acquittal or a divided jury, it must presume acquittal. State v. Daniels, 124 Wn. App. 830, 844, 103 P.3d 249 (2004). But we had not yet decided Ervin, and considering our reasoning there regarding the identical jury instruction, as well as clear precedent from the United States Supreme Court, we hold jeopardy did not terminate on Daniels's homicide by abuse charge and she may be retried. II.THERE WAS NO FINAL CONVICTION TERMI-NATING JEOPARDY ON DANIELS'S SECOND DE-GREE FELONY MURDER CHARGE ¶17 Daniels argues the jury did not indicate whether it found her guilty under the predicate offense of criminal mistreatment, assault, or both, and we should infer the jury acquitted her of second degree murder predicated on criminal mistreatment. But the State may retry Daniels for the same charge when a conviction is reversed for any reason other than insufficient evidence. See Burks v. United States, 437 U.S. 1, 18, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978) (holding that the double jeopardy clause bars retrial where a court has vacated a conviction due to insufficient evidence); North Carolina v. Pearce, 395 U.S. 711, 720, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969) (double jeopardy clause "imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside") (emphasis omitted). Sufficient evidence exists to support the predicate crime of criminal mistreatment, see Daniels, 124 Wn. App. at 840-41; therefore Daniels's conviction is not final, and jeopardy has not terminated. III.DANIELS WAS IN CUSTODY WHEN SHE WAS QUESTIONED AND THEREFORE REQUIRED MI-RANDA WARNINGS ¶18 The Court of Appeals held Daniels's statements about her son's death prior to receiving Miranda warnings must be suppressed. We affirm. "By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. at 428 (quoting Miranda, 384 U.S. at 444). The Court continued: "It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspect's freedom of action is curtailed to a 'degree associated with formal arrest.' " Id. at 440 (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983) (per curiam)). The State reads this language to almost suggest a suspect is entitled to Miranda warnings only when she is indeed formally arrested. Rather we must determine whether, given this factual setting, a "reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave." Thompson v. Keohane, 516 U.S. 99, 112, 116 S. Ct. 457, 133 L. Ed. 2d 383 (1995). If not, she must be given Miranda warnings before the police ask any question likely to provoke an incriminating response. ¶21 The Court of Appeals, citing Berkemer and Thompson, correctly found Daniels was subjected to a custodial interrogation because a reasonable person in Daniels's position would not feel free to terminate the interrogation and voluntarily leave. Therefore, any statements Daniels made prior to being given Miranda warnings were properly excluded. CONCLUSION ¶22 We hold the State may retry Daniels on both the homicide by abuse charge and second degree murder charge, predicated on criminal mistreatment. Also, statements Daniels made to the police before being given Miranda warnings must be excluded because she was subjected to a custodial interrogation. ¶23 Therefore we reverse the Court of Appeals in part and affirm in part and remand to the superior court for proceedings consistent with this opinion. ALEXANDER, C.J., and C. JOHNSON, MADSEN, BRIDGE, CHAMBERS, OWENS, FAIRHURST, and J.M. JOHNSON, JJ., concur.