Continuing Effects of Andress

In 2002, the Washington Supreme Court held that assault could not be the predicate felony for second-degree felony murder. In Re Andress, 147 Wn. 2d 602, Legalwa link (2002). In the wake of this case, many convictions were vacated and prosecutors around the state needed to figure out how to respond.

A year ago, one local case (Jerell Thomas, in the "Mardi Gras riot" case) was resolved by the defendant pleading guilty to second-degree manslaughter and getting a sentence five years shorter. Earlier post. In another case, Chayce A. Hanson, sentenced to 25 years for killing a small child he was babysitting, pleaded guilty to lesser charges and got 10-year sentence. Natalie Singer, Ruling overturns conviction in girl's death; man gets reduced sentence, Seattle Times, Sept. 30, 2006.

Now another defendant who was prominent in the local news faces new charges. Natalie Singer, New charges in officer's fatal shooting, Seattle Times, March 7, 2007. Quentin Ervin, one of the men convicted of killing off-duty police officer Antonio Terry in 1994, was charged with aggravated first-degree murder and the lesser included offenses of first-degree murder and second-degree felony murder. The jury convicted him of the least serious offense, second-degree felony murder. After Andress, the felony murder conviction was vacated.

The state wanted to retry him on the first two charges, but could it? Wouldn't that be double jeopardy? The Supreme Court unanimously held that it could, because the non-convictions on the first two offenses (for which the jury left the verdict forms blank) were not implied acquittals (that would have resulted in jeopardy attaching) -- they could have represented the jury's failure to agree. State v. Ervin, --- Wn.2d ---, Findlaw (Nov. 30, 2006) (Bridge, J.). And so King County prosecutors filed new charges on Tuesday. Deputy prosecutor (and Trial Ad instructor) Scott O'Toole says that the state plans to go to trial, but a plea agreement is still possible.

(If there were a prize for Trial Ad Instructor Most Often Mentioned in Newspapers, Scott would win it, hands down. I have a LexisNexis Eclipse search for all of their names, not just his.)

The legislature was unhappy with Andress and quickly (chapter 3 of the next legislative session) amended the felony murder statute (RCW 9A.32.050(b)) to make it clear that assault can be a predicate felony:

(1) A person is guilty of murder in the second degree when:
* * *
(b) He or she commits or attempts to commit any felony, including assault, * * * and, in the course of and in furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death of a person other than one of the participants; * * *

Id. (emphasis added). The legislature also included a statement of findings and intent indicating that it believed the statute had been clear all along and the Supreme Court was mistaken -- but, since the court had ruled as it had, a curative amendment was necessary.