Stephens v. State

"It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction."

"Arguably, the per curiam opinion might be read as meaning that although there was insufficient evidence to convict the defendants of 'murder in the first degree,' there was nonetheless evidence to support a conviction of a lesser included offense, e.g., second-degree murder, see Fla.Stat. Sec. 782.04 (1977). At the time of the Florida Supreme Court's holding in this case, the Double Jeopardy Clause was not applicable to state proceedings, and hence that court conceivably did not see any need to consider whether, under the Federal Constitution, a retrial would be allowed only for some lesser included offense.Cf.Green v. United States,355 U.S. 184,78 S.C. 221, 2 L.Ed. [2d] 199 (1957). Indeed, even ifBenton v. Maryland,395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), had been decided prior to the State Supreme Court's action, the Florida court might have reasonably concluded from our decisions that a retrial for first-degree murder was permissible under the Double Jeopardy Clause. SeeBurks,395 U.S., at 10, 98 S.Ct., at 2147. Given our decision today to remand this case for reconsideration by the Court of Appeals, we need not reach the question of whether the State could, consistent with the Double Jeopardy Clause, try Greene for a lesser included offense in the event that his first-degree murder conviction is voided." (Emphasis added.)

"InUnited States v. Ball,163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300 (1896), this Court observed: 'The Constitution of the United States, in the Fifth Amendment, declares, "nor shall any person be subject [for the same offense] to be twice put in jeopardy of life or limb." The prohibition is not against being twice punished, but against being twiceputin jeopardy * * *.' (Emphasis added.) The 'twice put in jeopardy' language of the Constitution thus relates to a potential, i.e., the risk that an accused for a second time will be convicted of the 'same offense' for which he was initially tried.

"The circumstances that give rise to such a forbidden potential have been the subject of much discussion in this Court. In theBallcase for example, the Court expressly rejected the view that the double jeopardy provision prevented a second trial when a conviction had been set aside. In so doing, it effectively formulated a concept of continuing jeopardy that has application where criminal proceedings against an accused have not run their full course. SeeGreen v. UnitedStates,355 U.S. 184, 189, 78 S.Ct. 221, 224, 2 L.Ed.2d 199 (1957).

"The continuing jeopardy principlenecessarily is applicable to this case. Petitionersought and obtained the reversal of his initialconviction for voluntary manslaughter by taking anappeal. Accordingly, no aspect of the bar on doublejeopardy prevented his retrial for that crime.However the first verdict, limited as it was to thelesser included offense, required that the retrialbe limited to that lesser offense.Such a result flows inescapably from the Constitution's emphasis on a risk of conviction and the Constitution's explication in prior decisions of this Court.

* * * * * *

"The rationale of theGreenholding applies here.The concept of continuingjeopardy implicit in the Ball case would allowpetitioner's retrial for voluntary manslaughterafter his first conviction for that offense hadbeen reversed." (Emphasis added). 398 U.S. at 326-329, 90 S.Ct. at 1759-1761.

"One further consideration remains. Because the petitioner was convicted of the same crime at both the first and second trials, and because he suffered no greater punishment on the subsequent conviction, Georgia submits that the second jeopardy was harmless error when judged by the criteria ofChapman v. California,386 U.S. 18, 87 S.Ct. 824, 17

L.Ed.2d 705 (1967), andHarrington v.California,395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

"We must reject this contention. The Double Jeopardy Clause, as we have noted, is couched in terms of the risk or hazard of trial and conviction, not of the ultimate legal consequences of the verdict. To be charged and to be subjected to a second trial for first-degree murder is an ordeal not to be viewed lightly.Further, andperhaps of more importance, we cannot determinewhether or not the murder charge against petitionerinduced the jury to find him guilty of the lessserious offense of voluntary manslaughter ratherthen to continue to debate his innocence.SeeUnited States ex rel. Hetenyi v.Wilkins,348 F.2d 844(C.A. 2d Cir. 1965), cert. denied,Mancusi v. Hetenyi,383 U.S. 913, 86 S.Ct. 896, 15 L.Ed.2d 667 (1966)." (Emphasis added).

"We asked the parties to submit post-argument memoranda directed to the question of whether petitioner can now be re-indicted or retried for voluntary manslaughter under Georgia law. These memoranda have been filed and indicate that the answer to our question appears to depend upon the construction of several Georgia statutes and on the power of Georgia courts to fashion remedial orders. Accordingly, although we reverse petitioner's conviction, we also remand the case to enable the Georgia courts to resolve the issues pertaining to petitioner's retrial, if any such retrial is to be had."

"If you find that the State proved beyond a reasonable doubt all of the essential elements of aggravated murder, your verdict must be guilty of that crime and in that event you will not consider any lesser offense.

"But if you find that the State failed to prove the killing was done while the defendant was committing or fleeing immediately after committing aggravated robbery, but that the killing was nonetheless purposely done, you will proceed with your deliberations and decide whether the State has proved beyond a reasonable doubt the elements of the lesser crime or murder. The crime of murder is distinguished from aggravated murder by the State's failure to prove that the killing was done while the defendant was committing or fleeing immediately after committing the crime of aggravated robbery."

"Respondent appealed his conviction, claiming that his trial for aggravated murder following his conviction for aggravated robbery violated the Double Jeopardy Clause. The Ohio Court of Appeals, Fifth Judicial District, affirmed his conviction,State v. Mathews,CA No. 2578 (Licking County Ct.App., Aug. 9, 1979), and the Ohio Supreme Court declined to grant discretionary review.State v. Mathews,No. 79-1342 (Ohio Sup.Ct., Dec. 7, 1979). This Court granted respondent's petition for writ of certiorari, and remanded the case for further consideration in light ofIllinois v. Vitale,447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980).Mathewsv. Ohio,448 U.S. 904, 100 S.Ct. 3044, 65 L.Ed.2d 1134 (1980).

"On remand, the Court of Appeals found that the Double Jeopardy Clause, as construed by this Court in Vitale, barred respondent's conviction for aggravated murder.State v. Mathews,No. 2578 (Licking County Ct.App., Nov. 7, 1980). The court noted, however, that Sec. 2903.01 defines aggravated murder as purposely causing the death of another while committing certain felonies, and that Sec. 2903.02 defines murder simply as purposely causing the death of another. App. to Pet. for Cert. A-26. In respondent's trial therefore, 'if all the facts relating to the aggravated robbery of which he was convicted are excluded from consideration of the court and jury, the defendant was still charged with and convicted of murder in that he did purposely cause the death of Steven Daugherty on the date charged.' Ibid. Accordingly,the Court of Appeals modified theconviction of aggravated murder to murder andreduced respondent's sentence to an indefinite termof from 15 years to life.Id., at A-27. Once again, the Ohio Supreme Court denied respondent's motion to appeal, and this Court denied his subsequent petition for certiorari review.Mathews v. Ohio,451 U.S. 975, 101 S.Ct. 1057 [2057], 68 L.Ed.2d 356 (1981).

"Respondent then sought a writ of habeas corpus in federal court. Applying the reasoning of the Ohio Court of Appeals, the District Court denied respondent's petition.Mathews v.Marshall,No. C-1-81-834 (WD Ohio, Apr. 19, 1983).

"A divided panel of the Court of Appeals for the Sixth Circuit reversed.Mathews v.Marshall,754 F.2d 158(1985). Although refusing to hold that in a case like this a new trial on the nonbarred charge is always necessary, the court held that 'a conviction obtained in violation of the double jeopardy clause cannot be modified if the defendant can show that there was a "reasonable possibility that he was prejudiced" by the double jeopardy violation,' and that "`an exceedingly small showing . . . would suffice.'" Id., at 162, quotingGraham v. Smith,602 F.2d 1078, 1083 (CA2 1979). Apparently agreeing with respondent's assertion that 'evidence was admitted in his trial for aggravated murder that would not have been admissible in a trial for murder,' and stating that the jury 'may have [been] prejudiced' by that evidence, the court concluded that respondent had established a sufficient possibility of prejudice to warrant a new trial on the murder charge.Mathews v.Marshall,supra, at 162."

* * * * * *

"As an initial matter, we note several issuesthat are not in dispute. First, the State concedesthat under our cases the prosecution of respondentfor aggravated murder violated the Double JeopardyClause. Similarly, respondent concedes that theClause would not prevent the State from trying himfor murder. Next, all of the courts that havereviewed this case have agreed that, in findingrespondent guilty of aggravated murder, thejury

necessarily found that he 'purposely cause[d]the death of another,' which is the definition ofmurder under Ohio Rev. Code Ann. Sec. 2903.02(1982).See n. 4, supra. Finally, this is not a 'harmless error' case: allowing respondent to be tried for aggravated murder was error, and it was not in any sense harmless. With these considerations aside,the only issues before usis whether reducing respondent's conviction foraggravated murder to a conviction for murder is anadequate remedy for the double jeopardyviolation.

"Respondent argues that, because the trial for aggravated murder should never have occurred, the Double Jeopardy Clause bars the State from taking advantage of the jeopardy-barred conviction by converting it into a conviction for the lesser crime of murder. He submits that a new trial must be granted whether or not there is a showing of prejudice.

"Respondent relies heavily onPrice v.Georgia,398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970), but his reliance is misplaced. Price was tried for murder and convicted of the lesser-included offense of manslaughter. After that conviction was reversed on appeal, there was another trial for murder and another conviction of the lesser crime of manslaughter. We held that the second conviction could not stand because Price had been impliedly acquitted of murder at the first trial and could not be tried again on that charge.Id.,at 329, 90 S.Ct., at 1761. Nor could we 'determine whether or not the murder charge against petitioner induced the jury to find him guilty of the less serious offense of voluntary manslaughter rather than to continue to debate his innocence.'Id.,at 332, 90 S.Ct., at 1762.

"This holding in Price did not impose an automatic retrial rule whenever a defendant is tried for a jeopardy-barred crime and is convicted of a lesser-included offense. Rather, the Court relied on the likelihood that the conviction for manslaughter had been influenced by the trial on the murder charge — that the charge of the greater offense for which the jury was unwilling to convict also made the jury less willing to consider the defendant's innocence on the lesser charge. That basis for finding or presuming prejudice is not present here.The jury did not acquitMathews of the greater offense of aggravatedmurder, but found him guilty of that charge and, afortiori, of the lesser offense of murder aswell.

"Benton v. Maryland,395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), also strongly indicates that to prevail here, Mathews must show that trying him on the jeopardy-barred charge tainted his conviction for the lesser-included offense. Benton was tried for both larceny and burglary. The jury acquitted him on the larceny count, but found him guilty of burglary. His conviction was later set aside because the jury had been improperly sworn. Benton again was tried for both burglary and larceny, and the second jury found him guilty of both offenses. The Maryland Court of Appeals held there had been no double jeopardy violation, but we disagreed, ruling that the Double Jeopardy Clause required setting aside the larceny conviction and sentence.Id.,at 796-797, 89 S.Ct. at 2063-2064.

"Benton urged that his burglary conviction must also fall because certain evidence admitted at his second trial would not have been admitted had he been tried for burglary alone. This evidence, he claimed, prejudiced the jury and influenced their decision to convict him of burglary. We rejected that argument, saying both that '[i]t [was] not obvious on the face of the record that the burglary conviction was affected by the double jeopardy violation,' and that we should not make this kind of evidentiary determination 'unaided by prior consideration by the state courts.'Id.,at 798, 89 S.Ct., at 2064 (footnote omitted). We thus vacated the judgment of the Maryland

court, and remanded for further proceedings.

"Neither Benton nor Price suggest that a conviction for an unbarred offense is inherently tainted if tried with a jeopardy-barred charge. Instead, both cases suggest that a new trial is required only when the defendant shows a reliable inference of prejudice. We perceive no basis for departing from this approach here; for except that murder was a lesser offense included in the aggravated murder charge rather than a separate charge, there is no difference between this case and Benton for double jeopardy purposes.

"Accordingly, we hold that when ajeopardy-barred conviction is reduced to aconviction for a lesser included offense which isnot jeopardy barred, the burden shifts to thedefendant to demonstrate a reasonable probabilitythat he would not have been convicted of thenon-jeopardy-barred offense. In this situation, webelieve that a 'reasonable probability' is aprobability sufficient to undermine confidence inthe outcome.Cf.Strickland v.Washington,466 U.S. 668, 695, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). After all, one of the purposes of the Double Jeopardy Clause is to prevent multiple prosecutions and to protect an individual from suffering the embarrassment, anxiety, and expense of another trial for the same offense,Green v. United States,355 U.S. 184, 187-188, 78 S.Ct. 221, 223-224, 2 L.Ed.2d 199 (1957).In cases like this, therefore, whereit is clear that the jury necessarily found thatthe defendant's conduct satisfies the elements ofthe lesser included offense, it would beincongruous always to order yet another trial as ameans of curing a violation of the Double JeopardyClause.

"The Court of Appeals thus was correct in rejecting respondent's per se submission, but it was nevertheless too ready to find that Mathews had made the necessary showing of prejudice. First, the court's 'reasonable possibility' standard, which could be satisfied by 'an exceedingly small showing,' was not sufficiently demanding.Toprevail in a case like this, the defendant mustshow that, but for the improper inclusion of thejeopardy-barred charge, the result of theproceeding probably would have beendifferent."

"In cases like this, therefore, where it isclear that the jury necessarily found that thedefendant's conduct satisfies the elements of thelesser included offense, it would be incongruousalways to order yet another trial as a means ofcuring a violation of the Double JeopardyClause." (Emphasis added.)

"We agree with the dissent that the Supreme Court opinions ofGreene v. Massey,437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978) andBurksv. United States,437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) prevent the retrial of the appellant for the offense of burglary of a residence. However, there is nothing in these opinions which would prevent retrial for the offense of burglary of a building. We hold that the appellant may be retried for the offense of burglary of a building."

"Even if the evidentiary deficiency in the proof of the greater offense liesmerelyin a failure to prove the additional 'facts required to establish the commission of the [greater] offense,' or the greater culpable mental state, or the proof establishes only an attempt at commission of the greater offense, or a less serious injury or risk of injury than that required of the greater offense, Article37.09, V.A.C.C.P., in nevertheless havingproceededon the greater offense, as well as any properly authorized lesser included offenses, the State has risked the possibility of obtaining a verdict on the greater offense, which proves, on appellate review, to be unsupported in the evidence. Having thus overreached, as it were, the State cannot be heard to complain that it has not had its one bite at the apple. No consideration of 'fairness to society' can justify the additional 'embarrassment, expense and ordeal' to an accused under these circumstances." 749 S.W.2d at 794.

"Having concluded that the offenses for which Beverly was convicted are the same insofar as the Double Jeopardy Clause is concerned, we consider next the contention that he was wrongfully prosecuted for murder following the Court of Criminal Appeals' acquittal on the greater offense of robbery when the victim is intentionally killed. Relying primarily onBurks v. UnitedStates,437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), Beverly argues that the appellate reversal of the 1981 conviction based on evidentiary insufficiency is the operative equivalent of a judgment of acquittal on the offense, and all of the lesser offenses included therein, including murder.

"InBurks,the Supreme Court held that the Double Jeopardy Clause precludes a second trial for an alleged offense once a reviewing court has determined that the evidence introduced at trial was insufficient to sustain the verdict.Id.,at 18, 98 S.Ct. at 2150. The Court, in a companion case, applied theBurksrule to a state criminal proceeding.Greene v.Massey,437 U.S. 19, 24, 98 S.Ct. 2151, 2154, 57 L.Ed.2d 15 (1978). Through these cases, the Court carved out anarrow exceptionto the rule announced long ago inUnited States v.Ball,163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), that a criminal defendant who successfully appeals a judgment against him 'may be tried anew . . . for the same offense of which he had been convicted.'Id.,at 672, 16 S.Ct. at 1195. Two closely related policies underlie the exception: (1) a reversal based on insufficiency of the evidence has the same effect as a judgment of acquittal, to which the Double Jeopardy Clause attaches special significance, because both mean that no rational finder of fact could have voted to convict the defendant on the evidence presented; and (2) the prosecution should not be afforded another opportunity to supply evidence it failed to muster in the previous trial.Tibbs v. Florida,457 U.S. 31, 41-42, 102 S.Ct. 2211, 2217-18, 72 L.Ed.2d 652 (1982). Neither of these policies are implicated in this case.

"The Court of Criminal Appeals' reversal of Beverly's second conviction for robbery when the victim is intentionally killed did not constitute a decision that the State failed to prove beyond a reasonable doubt the lesser included offense. SeeEx parte Beverly,497 So.2d at 523. In fact, the court explicitly limited its finding of insufficient evidence to common law robbery when it stated that '[t]he deficiency in this particular case is not a mere insufficiency of the evidence but rather the total lack of proof of all the essential elements of common law robbery as charged in the indictment.' [Beverly v. State]Beverly II,439 So.2d [758] at 762 [Ala.Cr.App. 1983]. The jury was instructed on the lesser included offense of murder, and common sense dictates that they necessarily found Beverly guilty of that offense by returning a guilty verdict on the greater offense. SeeBrown v. Ohio,432 U.S. [161] at 167-68, 97 S.Ct. [2221] at 2226-27 [53 L.Ed.2d 187 (1977) ].Since nostate appellate court has declared that theevidence that Beverly murdered Scott Deroo wasinsufficient to support the

jury's verdict, Beverly's claim that he hasbeen acquitted of murder is meritless.

"Moreover, this is not a case in which theState was presented with multiple opportunities toconvict and punish an individual for a singleoffense; rather, quite the opposite is true. Athis request, Beverly was given another chance torebut the State's evidence that he committed themurder even though the State had already obtaineda conviction for that offense.

"Furthermore, Beverly was not subjected to the threat of any greater punishment than he would have received had the Alabama Court of Criminal Appeals rendered judgment on the lesser included offense of murder and remanded the case to the trial court for sentencing, a procedure approved by this court's predecessor and the courts of Alabama despite double jeopardy objections. See e.g.,Theriault v. United States,434 F.2d 212(5th Cir. 1970);Ex parte Edwards,452 So.2d 508(Ala. 1984).It is difficult toimagine, therefore, how Beverly's second chance atacquittal could be constitutionally infirm when aremand for sentencing would not have been.

"We conclude that the Constitution's prohibition against double jeopardy did not preclude the State from retrying Beverly on the lesser included offense once the Court of Criminal Appeals reversed his conviction on the greater offense. To hold otherwise would impose too high a price on society. SeeUnited States v. Tateo,377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964)." (Emphasis added; footnotes omitted.)

"While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the Ball principle are the implications of that principle for the sound administration of justice. Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendants' rights as well as society's interest. The underlying purpose of permitting retrial is as much furthered by application of the rule to this case as it has been in cases previously decided."