Lemke v. Ryan

719 F.3d 1093 (2013)

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Lemke v. Ryan

United States Court of Appeals for the Ninth Circuit
719 F.3d 1093 (2013)

AR

Facts

Robert Lemke (defendant) was indicted in Arizona state court for the robbery and murder of Charles Chance. Lemke was indicted on three counts: (1) felony murder predicated on armed robbery, (2) armed robbery, and (3) conspiracy to commit armed robbery. The court instructed the jury that the robbery and conspiracy charges included the lesser charges of theft and conspiracy to commit theft. The court also gave the jury an instruction that allowed the jurors to consider a lesser included offense if they could not agree on the greater charged offense after a reasonable effort. After seven days, the jury returned guilty verdicts on the lesser included offenses of theft and conspiracy to commit theft. The jury left the verdict forms for armed robbery and conspiracy to commit armed robbery blank. Finally, the jury reported that it could not reach a verdict on felony murder predicated on armed robbery. The court declared a mistrial on the felony-murder count and convicted Lemke on the theft and conspiracy convictions. The state then sought retrial on the felony-murder count. Lemke moved for dismissal, arguing that double jeopardy barred his retrial. The trial court denied Lemke’s motion, the Arizona Court of Appeals affirmed, and the Arizona Supreme Court denied review. Lemke then pleaded guilty to felony murder in exchange for a possibility of parole in 25 years. Lemke appealed to the United States Court of Appeals for the Ninth Circuit, arguing that his retrial for the felony-murder charge violated the Double Jeopardy Clause because the jury had impliedly acquitted him of the robbery underlying it.

Rule of Law

Issue

Holding and Reasoning (Canby, J.)

Concurrence/Dissent (Burns, J.)

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