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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
                                        )
------------)

      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



                                            2
In re Pers. Restraint of Moi, No. 89706-9


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 Wn. 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



                                            3
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 Wn.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 Wn.2d 795, 815, 100 P.3d 291 (2004) (citing State v.

Goeken, 127 Wn.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 Wn.2d 765,

770, 108 P.3d 753 (2005) (citing State v. Johnston, 100 Wn. App. 126, 137,

996 P.2d 629 (2000)); State v. Williams, 132 Wn.2d 248, 254, 937 P.2d 1052

(1997) (citing McDaniels v. Carlson, 108 Wn.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




                                            4
In re Pers. Restraint ofMoi, No. 89706-9


 Orange, 152 Wn.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



                                           5
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 Wn.2d at 254 (quoting State v. Cleveland, 58 Wn. 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 Wn.2d 350, 361, 60 P.3d
 1

1192 (2003) (citing Rains v. State, 100 Wn.2d 660, 665, 674 P.2d 165 (1983)). The
parties do not argue that the differences are material to this case.


                                             6
In re Pers. Restraint ofMoi, No. 89706-9


min., 7 sec. 2 Thus, the only question is whether application of the doctrine

will not work an injustice. Williams, 132 Wn.2d at 254 (quoting Cleveland,

58 Wn. 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 Wn.2d 916, 923, 337 P.3d 1090 (2014); State v. Smith, 106

Wn.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.


                                             7
In re Pers. Restraint of Moi, No. 89706-9


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



                                            8
In re Pers. Restraint of Moi, No. 89706-9


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.


                                              9
In re Pers. Restraint of Moi, No. 89706-9


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



                                            10
In re Pers. Restraint of Moi, No. 89706-9


element is most firmly rooted in procedural unfairness." 138 Wn.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 Wn. 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



                                            11
In re Pers. Restraint of Moi, No. 89706-9


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
Wn.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


                                             12
In re Pers. Restraint of Moi, No. 89706-9


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
Wn.2d 835, 847, 280 P.3d 1102 (2012) and State v. Grier, 171 Wn.2d 17, 246 P.3d 1260
(20 11 )).


                                            13
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.


                                            14
In re Pers. Restraint of Moi, No. 89706-9




WE CONCUR:




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