The State of Washington, Respondent, v. Edward Michael Glasmann, Petitioner, 183 Wash. 2d 117

Owens, J. ¶1 The Washington and United States Constitutions prohibit the government from placing persons in double jeopardy, meaning that the government cannot prosecute a person twice for the same offense. U.S. Const, amend. V; Wash. Const, art. I, § 9.

Our case law firmly establishes that if (1) the State charges a person with greater and lesser offenses and the jury is unable to agree regarding the greater offense but finds the defendant guilty of the lesser offense and (2) the defendant’s conviction for the lesser offense is reversed on appeal, then the State may retry the defendant for the greater offense without violating double jeopardy. State v. Daniels, 160 Wn.2d 256, 265, 156 P.3d 905 (2007) (Daniels I), adhered to on recons., 165 Wn.2d 627, 628, 200 P.3d 711

(2009) CDaniels II). In this case, Edward Michael Glasmann asks us to reconsider the Daniels decisions because our approach now differs from the Ninth Circuit Court of Appeals’ approach. We will overturn our precedent only when someone shows that it is incorrect and harmful. Since Glasmann has not made that showing regarding the Daniels decisions, we see no reason to overturn them. FACTS ¶2 The State charged Glasmann with first degree assault, first degree attempted robbery, first degree kidnapping, and obstruction of a law enforcement officer.

At trial, the trial court instructed the jury on lesser offenses for each of the charges except obstruction of a law enforcement officer. For each potential offense, the trial court provided the jury with a different verdict form, and it instructed the jury that for the verdict forms containing the greater charges, “[i]f you unanimously agree on a verdict, you must fill in the blank provided [on the verdict form] 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 [on the verdict form].” Clerk’s Papers at 52.

The instruction went on to state, “If you find the defendant not guilty of the [higher crime], or if after full and careful consideration of the evidence you cannot agree on that crime, you will consider the [relevant lesser crime].” Id. at 52-53. ¶3 The jury left the verdict forms blank for first degree assault and first degree attempted robbery and instead convicted Glasmann of second degree assault and second degree attempted robbery.

The jury also convicted Glasmann of first degree kidnapping and obstructing a law enforcement officer. ¶4 Subsequently, Glasmann filed a personal restraint petition alleging prosecutorial misconduct. We held that the prosecutor committed misconduct by using an inflammatory slideshow during closing argument, reversed Glas-mann’s convictions, and remanded for a new trial. In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 714, 286 P.3d 673 (2012) (plurality opinion). The State refiled all of the original charges.

Glasmann objected to being retried for first degree assault and first degree attempted robbery on double jeopardy grounds. The trial court denied his objection based on Daniels I. We granted direct discretionary review. ISSUE ¶5 Should we overturn our established rule that allows the State to retry a defendant on a charge on which the jury was previously unable to agree? ANALYSIS 1. Double Jeopardy and Our Jurisprudence Regarding Implied Acquittals ¶6 The United States Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const, amend. V.

Our state constitution prohibits persons from being “twice put in jeopardy for the same offense.” Wash. Const, art. I, § 9. We interpret our state’s double jeopardy provision identically to the federal provision. State v. Schoel, 54 Wn.2d 388, 391, 341 P.2d 481 (1959). ¶7 In general, we find a double jeopardy violation “where (1) jeopardy has previously attached, (2) that jeopardy has terminated, and (3) the defendant is in jeopardy a second time for the same offense in fact and law.” State v. Ervin, 158 Wn.2d 746, 752, 147 P.3d 567 (2006).

Here, only whether jeopardy has terminated is at issue. ¶8 “ [I] t has long been settled under the Fifth Amendment that a verdict of acquittal is final, ending a defendant’s jeopardy.” Green v. United States, 355 U.S. 184, 188, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957). The United States Supreme Court has said that a jury’s silence can also act as an implied acquittal terminating jeopardy in two circumstances. Id. at 190-91. First, jeopardy terminates as to a greater offense when a jury convicts a defendant of a lesser included offense but is silent regarding the greater offense. Id.

Second, a defendant’s jeopardy on a greater charge ends “when the first jury ‘[is] given a full opportunity to return a verdict’ on that charge and instead reache [s] a verdict on the lesser charge.” Price v. Georgia, 398 U.S. 323, 329, 90 S. Ct. 1757, 26 L. Ed. 2d 300 (1970) (quoting Green, 355 U.S. at 191). ¶9 However, silence does not terminate jeopardy when the record indicates that the jury failed to agree on a verdict. Ervin, 158 Wn.2d at 757.

In Ervin, the trial court instructed the jury regarding aggravated first degree murder and lesser included offenses (including attempted first degree murder) and used multiple verdict forms and the same “unable to agree” jury instructions used in this case. Id. at 749-50. The trial court instructed the jury that if it unanimously agreed on a verdict for first degree murder, it should fill in the verdict form. Id. The trial court went on to instruct the jury that only if it could not agree on a verdict for first degree murder should it leave the verdict form blank and instead consider the lesser offenses. Id.

The jury left the verdict form blank for first degree murder and attempted first degree murder, and instead convicted Ervin of second degree murder. Id. at 750-51. On appeal, the Court of Appeals vacated Ervin’s conviction because of new case law that affected the conviction, and the State subsequently refiled the aggravated first degree murder and attempted first degree murder charges. Id. at 751. We held that double jeopardy did not bar retrial on those charges because the record indicated that the jury failed to agree on a verdict for them and thus the jury could not have silently acquitted Ervin of them.

Id. at 756-57. We reasoned that “the blank verdict forms indicate [d] on their face that the jury was unable to agree” because (1) the trial court gave the jury the “unable to agree” instructions, (2) “juries are presumed to follow the instructions provided,” and (3) the jury did not write in “not guilty” on the verdict forms for the greater charges — instead, it left the forms blank. Id. ¶10 We reaffirmed Ervin in Daniels I. In Daniels I, the State charged Daniels with homicide by abuse and second degree murder. 160 Wn.2d at 260.

As in Ervin, the trial court gave the jury the “unable to agree” instruction, telling the jury that if it could not agree on a verdict for homicide by abuse, it should leave that verdict form blank and instead consider second degree murder. Id. The jury left the homicide by abuse verdict form blank and instead convicted Daniels of second degree murder. Id. The Court of Appeals reversed Daniels’s conviction because of new case law that affected her conviction. Id. at 261.

We allowed the prosecutor to reinstate the homicide by abuse charge on retrial and reaffirmed Ervin, finding that because the blank verdict form indicated on its face that the jury was unable to agree regarding homicide by abuse, double jeopardy did not bar the State from retrying Daniels on that charge. Id. at 264-65. ¶11 Around the time we decided Daniels I, the Ninth Circuit came to the opposite conclusion about the conclusions that can be drawn from a blank verdict form when a jury is given an “unable to agree” instruction in Brazzel v. Washington, 491 F.3d 976 (9th Cir.2007).

In that case, the State charged Brazzel with, among other charges, attempted first degree murder and the lesser alternative charge of first degree assault. Id. at 979. The trial court gave the jury the “unable to agree” instruction discussed above, instructing the jury that if it unanimously agreed on a verdict for attempted first degree murder, it must fill in the verdict form. Id. at 979-80. The jury was further instructed that only if it could not agree on a verdict for attempted first degree murder should it leave the form blank. Id.

The jury left the verdict form blank for attempted first degree murder and instead convicted Brazzel of first degree assault. Id. at 979. ¶12 After Brazzel’s case was remanded for a new trial and the prosecutor reinstated the attempted first degree murder charge, the Ninth Circuit found that double jeopardy barred the State from retrying Brazzel on that charge. Id. at 979, 984-85.

The Ninth Circuit found that the jury’s inability to reach a verdict “ ‘after full and careful deliberation on the charge of attempted murder in the first degree’ . . . was an implied acquittal.” Id. at 984 (quoting the trial court’s instructions).

The Ninth Circuit reasoned that the jury must be “ ‘genuinely deadlocked’ ” about the verdict in order for the State to avoid the double jeopardy bar on retrial, and “[g]enuine deadlock is fundamentally different from a situation in which jurors are instructed that if they ‘cannot agree,’ they may compromise by convicting of a lesser alternative crime, and they then elect to do so without reporting any splits or divisions when asked about their unanimity.” Id. (quoting Arizona v. Washington, 434 U.S. 497, 509, 98 S. Ct. 824, 54 L.

Ed. 2d 717 (1978)). ¶13 Although the Ninth Circuit’s decisions are not binding on this court, we reconsidered Daniels I in light of Brazzel. Daniels II, 165 Wn.2d at 628 (Madsen, J., concurring). We chose to “adhere to our prior published opinion.” Id. (lead opinion). Glasmann asks us to again reconsider Daniels I. As explained below, we again adhere to Daniels I. 2. Glasmann Does Not Demonstrate that Daniels I Is Incorrect and Harmful ¶14 We will abandon precedent only if it is clearly shown to be incorrect and harmful. In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970).

Glasmann argues that Daniels I is both. First, he claims that it is incorrect because it is inconsistent with the holding of the United States Supreme Court that “[j]eopardy terminates when the jury is dismissed without returning a verdict despite having a full opportunity to do so.” Pet’r’s Br. at 14 (citing Green, 355 U.S. at 191). Second, he argues Daniels I is harmful because it “interposes an unnecessary and burdensome step on defendants” to seek federal review in order to avoid being retried on the same charges. Id. at 18. Neither of Glasmann’s arguments are persuasive.

First, the Supreme Court precedent that Glasmann cites does not involve an analogous “unable to agree” jury instruction and thus the core reasoning from those cases is inapplicable here. Second, the fact that defendants can obtain relief in federal court only underscores how Daniels I is not harmful. We will address each argument further in turn. ¶15 First, Daniels I is not inconsistent with Green and Price, the United States Supreme Court precedent about implied acquittals on which Glasmann relies.

The core reasoning from Green and Price does not apply here because those cases did not involve “unable to agree” instructions. See Green, 355 U.S. at 185; Price, 398 U.S. at 324. Rather, in Green, the trial court merely “instructed the jury that it could find Green guilty of arson under the first count and of either (1) first degree murder or (2) second degree murder under the second count.” 355 U.S. at 185. The jury convicted Green of arson and second degree murder, but the “verdict was silent on [first degree murder].” Id. at 186.

After the prosecutor reinstated the first degree murder charge on retrial, the Court reasoned that it was a double jeopardy violation because the jury impliedly acquitted Green of first degree murder by staying silent on that charge in its verdict. Id. at 190. The Court bolstered its assumption of the jury’s intent by stating that the jury “was given a full opportunity to return a verdict and no extraordinary circumstances appeared which prevented it from doing so. Therefore!,] . . . Green’s jeopardy for first degree murder came to an end when the jury was discharged.” Id. at 191.

The Court summed up its reasoning by saying, “In brief, we believe this case can be treated no differently, for purposes of former jeopardy, than if the jury had returned a verdict which expressly read: ‘We find the defendant not guilty of murder in the first degree but guilty of murder in the second degree.’ ” Id. ¶16 Here, because of the specific jury instructions about how the jury was to indicate a conviction or acquittal and how it was to indicate a failure to agree, we cannot reasonably conclude that the jury acquitted Glasmann.

The jury was specifically instructed that if it unanimously agreed on a verdict, it was required to fill in the blank on the verdict form. However, if it could not agree on a verdict, it was instructed to leave the form blank. Given those instructions, the jurors leaving the verdict form blank necessarily meant that they were genuinely deadlocked on the charge.

Unlike Green, here the jury’s verdict form can be treated no differently than if the jury had returned a verdict that expressly read, “We were unable to agree on a verdict for first degree assault and first degree attempted robbery, but we find Glasmann guilty of second degree assault, second degree attempted degree robbery, first degree kidnapping, and obstructing a law enforcement officer.” ¶17 Thus, Glasmann fails to show how Daniels I is incorrect — the United States Supreme Court precedent on which he relies is consistent with our case law.

Additionally, we are unpersuaded by the Ninth Circuit’s decision in Brazzel that a jury leaving a verdict form blank in this scenario amounts to an implied acquittal because being “unable to agree” is different from the genuine deadlock necessary for a mistrial. The Supreme Court decision on which the Ninth Circuit relies, Washington, uses the phrase “unable to reach a verdict” interchangeably with a jury being “genuinely deadlocked.” 434 U.S. at 509.

No United States Supreme Court opinion addresses a scenario in which the jury is specifically instructed to indicate that it is unable to agree by leaving the verdict form blank. We find that permitting the State to retry Glasmann in this scenario is consistent with the long-standing rule that “the jury [being] unable to reach a verdict [is] . . . the classic basis for a proper mistrial.” Id. ¶18 Second, Glasmann fails to show that Daniels I is harmful. The only harm Glasmann identifies is that because our precedent conflicts with Ninth Circuit precedent, he must file in federal court to obtain relief.

Although we recognize that a defendant who wishes to obtain relief will face the burden of filing in federal court, we find that degree of harm insufficient to overturn our precedent. It would undermine our role as an independent state court in our system of federalism if we overturned our precedent simply because it conflicted with a Ninth Circuit decision. Accordingly, Glasmann does not demonstrate that Daniels I is harmful.

CONCLUSION ¶19 In Daniels I, we reiterated that if the State charges a person with greater and lesser offenses and the jury is unable to agree regarding the greater offense, the State may retry the defendant for the greater offense without violating double jeopardy. Daniels I, 160 Wn.2d at 264-65. Glasmann fails to demonstrate that the Daniels decisions are incorrect and harmful. Accordingly, we adhere to our precedent and affirm the trial court. Johnson, Wiggins, González, and Yu, JJ., concur. Madsen, C.J., concurs in the result only.

The dissent argues that Daniels I does not control this case, but Daniels I clearly held that if the State charges a person with greater and lesser offenses and the jury is unable to agree regarding the greater offense, the State may retry the defendant for the greater offense without violating double jeopardy. 160 Wn.2d at 264-65. Even Glasmann agrees that our Daniels decisions control — he argues that we “[slhould [r]econsider ... State v. Daniels.” Pet’r’s Br. at 5 (underline omitted).

To the extent the dissent disagrees with the Daniels decisions and Ervin, it should engage in an incorrect and harmful analysis, as discussed below. In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970). The dissent argues that our holding takes away from the trial judge’s role in declaring mistrials, but the dissent’s argument ignores the practical reality facing trial court judges in these kinds of situations.

In these situations (where a jury convicts on a lesser charge while leaving the verdict form blank for the greater charge after receiving the “unable to agree” instructions), a trial judge could do nothing other than find that the jury agrees as to the lesser charge but is unable to agree as to the greater charge. Thus, the dissent’s concern is unwarranted. The dissent also argues that our holding defies the public policy goal of reducing mistrials, as discussed in State v.

Labanowski, 117 Wn.2d 405, 816 P.2d 26 (1991), but the dissent fails to recognize the unique procedural postures in which these kinds of cases arise. In these cases, procedurally, the jury has already agreed to convict the defendant of a lesser charge at the trial level (thus avoiding a mistrial). Our holding applies only if an appellate court reverses the conviction for the lesser charge and remands for retrial. Thus, our holding in no way conflicts with the Labanowski efficiency concerns. Id. at 420.