court must determine which felony government is trying to prove in order to decide whether there is double jeopardy problem when defendant previously convicted of aggravated robbery is tried for aggravated murder
How later courts described this case
- court must determine which felony government is trying to prove in order to decide whether there is double jeopardy problem when defendant previously convicted of aggravated robbery is tried for aggravated murder
Written by the judges who cited it.
The opinion
BAILEY BROWN, Senior Circuit Judge.
I respectfully dissent and would affirm District Judge Spiegel’s denial of habeas relief.
The majority opinion is bottomed on the proposition, following Graham v. Smith, 602 F.2d 1078 (2d Cir.1979), that there is a “reasonable possibility that [Mathews] was prejudiced,” id. at 1083 (quoting United States ex rel. Hentenyi v. Wilkins, 348 F.2d 844 , 864 (2d Cir.1965) (Marshall, J.), cert. denied, 383 U.S. 913 , 86 S.Ct. 896 , 15 L.Ed.2d 667 (1966)) (emphasis in original), by his trial for aggravated murder rather than murder. The reason there is a possibility that Mathews was so prejudiced, the majority opinion holds, is that “evidence was admitted in his trial for aggravated murder that would not have been admissible in a trial for murder.” (At 162).
It will be remembered that Mathews and one Daugherty had robbed a bank and, while pursued by police, were surrounded in a farm house. Shortly, two shots were fired and Daugherty was found dead, shot in the head and chest.
It is far from clear to me that, under the ordinary rules of evidence, the State would not, in a murder trial, have been allowed to prove the surrounding circumstances, including the facts surrounding the just-completed bank robbery. More importantly, admission of such proof would not rise to a federal constitutional violation, and we are here dealing with the question whether, by reducing Mathews’ conviction to murder, he has been deprived of a federal constitutional right. I do not think so and therefore dissent.