Murder Retrial Barred Because Gun Thrown Out In Other Case

Man cannot be prosecuted for murder when the prosecutor's theory was that he shot the victim with a gun that he had been acquitted of owning in a prior trial.

In re Moi, 2015 BL 356241, Wash., No. 89706-9, 1029/15

    The defendant was charged with murder. Relatedly, but stemming from a juvenile conviction, the defendant was charged with unlawful possession of a weapon. Because of the unusual situation, the parties agreed to let the judge decide the gun charge, and to have the jury decide the homicide charge.

     The jury could not reach a verdict on the homicide charge and a mistrial was declared. The trial judge acquitted the defendant of the unlawful possession of a weapon charge. The court ruled that the firearm acquittal bars retrial for the murder charge as a matter of collateral estoppel.

     The court reinforced its decision with the Pennsylvania Supreme Court ruling in Commonwealth v. States, 938 A.2d 1016 (Pa. 2007). In that decision, the court determined that there was a double jeopardy bar to retrial because there had been mistrial after a hung jury could not make a decision, and the trial court judge had acquitted the defendant on a related charge upon which the remaining counts depended.

http://www.bloomberglaw.com/public/desktop/document/In_re_Moi_No_897069_2015_BL_356241_Wash_Oct_29_2015_Court_Opinion?1448121178