State v. Daniels , 165 Wash. 2d 627 ( 2009 )

Madsen, J.

¶2 (concurring) — The Ninth Circuit’s decision in Brazzel v. Washington, 491 F.3d 976 (9th Cir. 2007) provides an interesting perspective, but I do not believe that it compels a different result upon reconsideration of this case. The jury instruction at issue works to the advantage of the defendant and the State by permitting a conviction on a lesser charge if the jury cannot agree on the greater. But the fact that the instruction was followed does not lead to the conclusion that double jeopardy principles bar retrial on the homicide by abuse charge.

¶3 The defendant has the “ Valued right to have his trial completed by a particular tribunal.’ ” Richardson v. United States, 468 U.S. 317, 325, 104 S. Ct. 3081, 82 L. Ed. 2d 242 (1984) (quoting Wade v. Hunter, 336 U.S. 684, 688-89, 69 S. Ct. 834, 93 L. Ed. 974 (1949)). The manner in which a jury can proceed given the instruction in this case is predictable and readily apparent to defendant and State alike. By agreeing to this instruction, the defendant also agreed to the unsurprising course her jury might follow in accord with the instruction. She is therefore in no position to complain if her jury failed to enter a verdict on the greater charge and a different jury must complete her trial following reversal of her conviction for second degree murder.

¶4 I concur in the result reached in the lead opinion.