Dimmick, J.
In 1977, petitioner was convicted of first degree murder pursuant to RCW 9A.32.030(l)(b)1 for the scalding death of his stepdaughter, Tanya. This court reversed the conviction holding that "extreme indifference" was an inappropriate charge. State v. Anderson, 94 Wn.2d 176, 616 P.2d 612 (1980) (Anderson I). Thereafter, the State filed an information based upon the same incident charging petitioner with first degree premeditated murder pursuant to RCW 9A.32.030(l)(a).2 Petitioner's motion to dismiss the charge on the grounds of double jeopardy was denied by the trial court. We reverse, however, on different grounds and dismiss the information without prejudice.
Dismissal is mandated by the State's failure to comply with Superior Court Criminal Rule 4.3 relating to joinder of offenses. CrR 4.3(c)(1) provides that offenses are related if based upon the same conduct and are within the jurisdiction and venue of the same court. The bathtub scalding death described in Anderson I was the basis for [741]*741both charges of first degree murder. The two charges brought against petitioner, one based upon RCW 9A.32-.030(1) (b) and the other based upon RCW 9A.32.030(l)(a), are related and could have been joined in the same information. See State v. Mitchell, 29 Wn.2d 468, 188 P.2d 88 (1947).
The consequences of the State's failure to join related offenses are set forth in CrR 4.3(c)(3):
A defendant who has been tried for one offense may thereafter move to dismiss a charge for a related offense . . . The motion to dismiss . . . shall be granted unless the court determines 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 some other reason, the ends of justice would be defeated if the motion were granted.
The State asserts that we should not dismiss the information under CrR 4.3(c)(3) because it has developed new evidence to prove premeditated murder that was unavailable during the first trial. The new evidence was by way of an affidavit presented at oral argument concerning petitioner's relationship with prior wives and others. The most recent incident described took place in 1974, which, we believe, was prior to the birth of Tanya. The State's affidavit also avers that the State plans to call as a witness in the new trial a pediatrician who is an expert in child abuse cases. He will testify, based upon his review of medical records, that petitioner's acts leading to the death of Tanya were intentional. No explanation is given as to why this information was not available at the time of the first trial. We find nothing in the affidavit presented to us to justify a decision denying a motion to dismiss under CrR 4.3(c)(3).
Accordingly, since the petitioner was not originally charged with premeditated murder — a related offense— and, as the facts existed at the time of the first trial to warrant such a charge, the State is now precluded from asserting it. We dismiss the information but do so without prejudice. The State is not barred by the doctrine of double [742]*742jeopardy from recharging petitioner with second degree murder, first degree manslaughter or second degree manslaughter.3
The protection against double jeopardy protects a citizen from being placed in the hazardous position of standing trial more than once for the same offense. Green v. United States, 355 U.S. 184, 187, 2 L. Ed. 2d 199, 78 S. Ct. 221, 6 A.L.R.2d 1119 (1957). If the appellate court reverses a conviction and remands for a new trial, the double jeopardy clause is ordinarily not offended. United States v. Tateo, 377 U.S. 463,12 L. Ed. 2d 448, 84 S. Ct. 1587 (1964). Nor is the protection offended when the first trial is on a defective information. State v. Burns, 54 Wash. 113, 102 P. 886 (1909). However, if an appellate court reverses a conviction based upon insufficiency of the evidence, a retrial is not permissible under this doctrine. Hudson v. Louisiana, 450 U.S. 40, 67 L. Ed. 2d 30, 101 S. Ct. 970 (1981); Burks v. United States, 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141 (1978). If the reversal is not for insufficiency of evidence, the defendant may be retried for the convicted offense and any lesser included offenses. Defendant may not, however, be retried on an offense of a higher degree because he has implicitly been acquitted of the higher degrees of the crime. See State v. Schoel, 54 Wn.2d 388, 341 P.2d 481 (1959); State v. Murphy, 13 Wash. 229, 43 P. 44 (1895); 3 C. Torda, Wharton on Criminal Evidence § 655 (13th ed. 1972).
In Anderson I our court concerned itself with three issues: (1) the speedy trial rule under CrR 3.3; (2) statements made by the defendant to a witness; and (3) whether the charge of first degree murder under RCW 9A.32-.030(1)(b) applied in fact situations where the acts alleged were aimed at, or intended and inflicted upon, a specific individual and no other. State v. Anderson, supra at 182. The facts deduced at trial were obviously necessary to dis[743]*743cuss all the issues.4 However, it must be remembered that the petitioner's original attack on the information for the same reason upheld by this court on appeal was first made prior to any trial on the facts. The defense was well aware that only one person was involved and made this quite clear to the trial court. That motion to dismiss on the same grounds was also made at the close of the State's evidence and was again reiterated in a motion for arrest of judgment and/or a new trial.
The Anderson I majority unanimously upheld the petitioner's contention that it was error for the trial court to fail to grant Anderson's motion to dismiss the charge of first degree murder brought under RCW 9A.32.030(l)(b).5 The unanimous court then continued, "This does not mean that the accused could not properly have been charged under other sections of RCW 9A.32. That is, however, a decision to be made by the prosecuting attorney." Anderson I, at 192.
Free access — add to your briefcase to read the full text and ask questions with AI
Dimmick, J.
In 1977, petitioner was convicted of first degree murder pursuant to RCW 9A.32.030(l)(b)1 for the scalding death of his stepdaughter, Tanya. This court reversed the conviction holding that "extreme indifference" was an inappropriate charge. State v. Anderson, 94 Wn.2d 176, 616 P.2d 612 (1980) (Anderson I). Thereafter, the State filed an information based upon the same incident charging petitioner with first degree premeditated murder pursuant to RCW 9A.32.030(l)(a).2 Petitioner's motion to dismiss the charge on the grounds of double jeopardy was denied by the trial court. We reverse, however, on different grounds and dismiss the information without prejudice.
Dismissal is mandated by the State's failure to comply with Superior Court Criminal Rule 4.3 relating to joinder of offenses. CrR 4.3(c)(1) provides that offenses are related if based upon the same conduct and are within the jurisdiction and venue of the same court. The bathtub scalding death described in Anderson I was the basis for [741]*741both charges of first degree murder. The two charges brought against petitioner, one based upon RCW 9A.32-.030(1) (b) and the other based upon RCW 9A.32.030(l)(a), are related and could have been joined in the same information. See State v. Mitchell, 29 Wn.2d 468, 188 P.2d 88 (1947).
The consequences of the State's failure to join related offenses are set forth in CrR 4.3(c)(3):
A defendant who has been tried for one offense may thereafter move to dismiss a charge for a related offense . . . The motion to dismiss . . . shall be granted unless the court determines 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 some other reason, the ends of justice would be defeated if the motion were granted.
The State asserts that we should not dismiss the information under CrR 4.3(c)(3) because it has developed new evidence to prove premeditated murder that was unavailable during the first trial. The new evidence was by way of an affidavit presented at oral argument concerning petitioner's relationship with prior wives and others. The most recent incident described took place in 1974, which, we believe, was prior to the birth of Tanya. The State's affidavit also avers that the State plans to call as a witness in the new trial a pediatrician who is an expert in child abuse cases. He will testify, based upon his review of medical records, that petitioner's acts leading to the death of Tanya were intentional. No explanation is given as to why this information was not available at the time of the first trial. We find nothing in the affidavit presented to us to justify a decision denying a motion to dismiss under CrR 4.3(c)(3).
Accordingly, since the petitioner was not originally charged with premeditated murder — a related offense— and, as the facts existed at the time of the first trial to warrant such a charge, the State is now precluded from asserting it. We dismiss the information but do so without prejudice. The State is not barred by the doctrine of double [742]*742jeopardy from recharging petitioner with second degree murder, first degree manslaughter or second degree manslaughter.3
The protection against double jeopardy protects a citizen from being placed in the hazardous position of standing trial more than once for the same offense. Green v. United States, 355 U.S. 184, 187, 2 L. Ed. 2d 199, 78 S. Ct. 221, 6 A.L.R.2d 1119 (1957). If the appellate court reverses a conviction and remands for a new trial, the double jeopardy clause is ordinarily not offended. United States v. Tateo, 377 U.S. 463,12 L. Ed. 2d 448, 84 S. Ct. 1587 (1964). Nor is the protection offended when the first trial is on a defective information. State v. Burns, 54 Wash. 113, 102 P. 886 (1909). However, if an appellate court reverses a conviction based upon insufficiency of the evidence, a retrial is not permissible under this doctrine. Hudson v. Louisiana, 450 U.S. 40, 67 L. Ed. 2d 30, 101 S. Ct. 970 (1981); Burks v. United States, 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141 (1978). If the reversal is not for insufficiency of evidence, the defendant may be retried for the convicted offense and any lesser included offenses. Defendant may not, however, be retried on an offense of a higher degree because he has implicitly been acquitted of the higher degrees of the crime. See State v. Schoel, 54 Wn.2d 388, 341 P.2d 481 (1959); State v. Murphy, 13 Wash. 229, 43 P. 44 (1895); 3 C. Torda, Wharton on Criminal Evidence § 655 (13th ed. 1972).
In Anderson I our court concerned itself with three issues: (1) the speedy trial rule under CrR 3.3; (2) statements made by the defendant to a witness; and (3) whether the charge of first degree murder under RCW 9A.32-.030(1)(b) applied in fact situations where the acts alleged were aimed at, or intended and inflicted upon, a specific individual and no other. State v. Anderson, supra at 182. The facts deduced at trial were obviously necessary to dis[743]*743cuss all the issues.4 However, it must be remembered that the petitioner's original attack on the information for the same reason upheld by this court on appeal was first made prior to any trial on the facts. The defense was well aware that only one person was involved and made this quite clear to the trial court. That motion to dismiss on the same grounds was also made at the close of the State's evidence and was again reiterated in a motion for arrest of judgment and/or a new trial.
The Anderson I majority unanimously upheld the petitioner's contention that it was error for the trial court to fail to grant Anderson's motion to dismiss the charge of first degree murder brought under RCW 9A.32.030(l)(b).5 The unanimous court then continued, "This does not mean that the accused could not properly have been charged under other sections of RCW 9A.32. That is, however, a decision to be made by the prosecuting attorney." Anderson I, at 192. The court simply reversed the trial court's ruling with no instructions as to the disposition of the case.
Since RCW 9A.32 also covers the lesser included offense of murder in the second degree, and since this court was mindful of its rule, CrR 4.3, regarding joinder of offenses, the court obviously did not foresee that the prosecutor would again charge murder in the first degree, although by an alternate method.
This court, by its terminology, left the door open for the prosecutor to resubmit the lesser included offenses to a new jury. If the trial court had dismissed murder in the first [744]*744degree at the close of the State's case, the lesser included offenses would still have been properly before that jury. If our court had considered that double jeopardy would apply, or had we determined that Anderson should be acquitted due to insufficiency of the evidence, we would have sent the case back to the trial court with directions to dismiss the case against Anderson with prejudice and release him forthwith from custody.
Accordingly, the reversal entered in Anderson I was not based upon insufficiency of the evidence, but rather was based upon the inapplicability of the statute, RCW 9A.32-.030(1)(b), to the situation presented. The case law is clear that such a reversal and retrial with relation to the lesser included offenses does not offend the guaranty against double jeopardy. Thus, although we dismiss the information charging petitioner with premeditated murder under RCW 9A.32.030(l)(a), we do so without prejudice.
Brachtenbach, C.J., and Stafford, Utter, Dolliver, and Hicks, JJ., concur.