Melvin W. Martin v. J.B. Taylor, Acting Warden Attorney General of the State of Virginia

MURNAGHAN, Circuit Judge,

dissenting:

Focusing on “what might have been,” the majority condones the successive prosecutions of Melvin Martin because Martin “could have been tried for the crime charged in the second case under several different aggregations of proof.” At 960. It is established, however, that “what might have been” is not the correct test for evaluating successive prosecutions under the Double Jeopardy Clause of the Fifth Amendment to the Constitution. The proper test is “what was”: we must examine the evidence actually used to prosecute the defendant in the successive trials. Here, the Commonwealth of Virginia has admitted that it relied on the same evidence, the breaking of the glass door, to convict Martin in both trials. The use of successive prosecutions here thus violates the constitutional guarantee “that an accused who has once stood the ordeal of criminal prosecution through to judgment — whether of conviction or acquittal — shall not be required to ‘run the gauntlet’ of trial again for the same alleged misconduct.” United States v. Ragins, 840 F.2d 1184, 1188 (4th Cir.1988) (citing Green v. United States, 355 U.S. 184, 187-90 , 78 S.Ct. 221, 223-25 , 2 L.Ed.2d 199 (1957)). I therefore respectfully dissent.

I agree with the majority that the successive prosecutions do not violate the strict “two offense” test articulated by the Supreme Court in Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932). In Blockburger , the Court ruled:

*962 [W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

Id. at 304 , 52 S.Ct. at 182 . Here, the vandalism misdemeanor required proof of damage to property, an element not required by the felony charge; the felony, attempted breaking and entering, required proof of specific intent to commit larceny, an element not required by the vandalism charge.

In Jordan v. Commonwealth of Virginia, 653 F.2d 870 (4th Cir.1980), however, we held that successive prosecutions may violate the Double Jeopardy Clause even when the simple Blockburger test for identifying different crimes is satisfied, if the successive prosecutions are, in fact, brought for the same offense: “Successive prosecutions implicate a component of double jeopardy protection not implicated in single prosecutions of joined charges such as those involved in Blockburger ...: the protection against retrial itself.” Id. at 873. In Jordan , we described the “same offense” test for successive prosecutions as involving

the question whether “the evidence required to warrant a conviction upon one of the [prosecutions] would have been sufficient to support a conviction upon the other,” and finding the second prosecution barred if the same evidence would so serve.

Id. (quoting In re Nielsen, 131 U.S. 176, 188 , 9 S.Ct. 672, 676 , 33 L.Ed. 118 (1889)). We reaffirmed the Jordan approach in United States v. Ragins, 840 F.2d 1184 (4th Cir.1988):

Given the multiplicity of offenses that may arise from a single criminal transaction, the formalistic Blockburger test, with its narrow focus on the technical elements of the offenses charged, is inadequate to vindicate this constitutional guarantee against retrial. The general test for determining whether successive prosecutions involve the “same offense” is therefore a more flexible and pragmatic one, which focuses not on the formal elements of the two offenses but rather on the proof actually utilized to establish them. Under this “same evidence” test, the second prosecution is barred by double jeopardy if the evidence actually used to prosecute the first offense would suffice to convict of the second offense as charged. Jordan, 653 F.2d at 873-74 ; see In re Nielsen, 131 U.S. 176, 188 , 9 S.Ct. 672, 676 , 33 L.Ed. 118 (1889), quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871); United States v. Sabella, 272 F.2d 206, 211 (2d Cir.1959).

Id. at 1188.

In its Brief, the Commonwealth of Virginia asks this court to reconsider the reasoning behind the Jordan decision: “The Commonwealth is thus asking this Court to reconsider the reasoning behind its ruling in Jordan , which was, in effect, gratuitous, and to hold instead that successive prosecutions occur for double jeopardy purposes only when the offenses involved are continuing.” Appellee’s Brief at 8-9. First, of course, this panel does not have the power to change Fourth Circuit precedent. Second, even if the Jordan reasoning could be treated as mere dictum, I do not find Virginia’s argument compelling. Virginia argues that the key factor behind Brown v. Ohio, 432 U.S. 161 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977), was the “continuing nature” of the offense:

Critical to both Brown and Jordan was the respective courts’ determinations that the offenses involved (joyriding and auto theft in Brown : obtaining a drug by deceit and possession of that drug in Jordan) were continuing ones. It was for tkis reason that the Brown court concluded that the two crimes were really one, and that further prosecution was barred. And it is for this reason that further prosecution should have been barred in Jordan .

Appellee’s Brief at 8. That interpretation is incorrect. In Brown , the Supreme Court held that successive prosecutions for joyriding (a misdemeanor) and auto theft (a felony) were barred by double jeopardy because joyriding is a lesser included offense *963 of auto theft. In Garrett v. United States, 471 U.S. 773 , 105 S.Ct. 2407 , 85 L.Ed.2d 764 (1985), the Supreme Court described Brown as follows:

The defendant in Brown had stolen an automobile and driven it for several days. He had engaged in a single course of conduct — driving a stolen car. The very same conduct would support a misdemeanor prosecution for joyriding or a felony prosecution for auto theft, depending only on the defendant’s state of mind while he engaged in the conduct in question. Every moment of his conduct was as relevant to the joyriding charge as it was to the auto theft charge.

Id. at 787, 105 S.Ct. at 2416 . In Garrett , the Supreme Court expressly distinguished Brown as merely involving successive prosecutions for a lesser included offense and a greater offense. See id. at 787, 789, 105 S.Ct. at 2415, 2416 ; see also Illinois v. Vitale, 447 U.S. 410, 417 , 100 S.Ct. 2260, 2265 , 65 L.Ed.2d 228 (1980) (“our holding in Brown v. Ohio ... that a conviction for a lesser-included offense precludes later prosecution for the greater offense”). The underlying problem with the Commonwealth’s argument is that it uses “lesser included offense” and “continuing offense” interchangeably. In fact, neither Brown nor Jordan nor the present case involve “continuing” offenses. In view of this Court’s clear statements in Jordan and Ra-gins adopting the “same evidence” test to determine whether successive prosecutions are for the same offense and violate double jeopardy, I see no basis for Virginia’s suggestion that we limit Jordan to cover only “continuing” offenses.

Here, Virginia violated Jordan by using the same evidence in both prosecutions. The breaking and entering element in the second trial was proved with evidence that Martin smashed the glass door — the same evidence used to convict Martin on the vandalism misdemeanor in the first trial. Virginia argues that the evidence of breaking the glass door was not needed to prove the breaking and entering charge, because testimony was presented at the second trial that Martin was seen pulling and pushing on the cashier’s window. It is true that under Virginia law, proving the pushing and pulling would have been sufficient to prove attempted breaking and entering, with which Martin was charged in the second prosecution. The Commonwealth admits, however, that it did not in fact rely on the pushing and pulling evidence in the second trial, and that it relied instead on evidence that Martin had smashed the door and was seen reaching in the door with a stick. That the focus in the second trial was entirely on the broken door is borne out by the opening and closing statements made by counsel at trial. The second prosecution thus runs afoul of the “proof actually utilized” test articulated in Ragins .

Virginia contends that “[t]he fact that this theory [the window evidence] was not relied on below is of no significance,” because “[t]he appellee, as the prevailing party, may rely on any ground in support of the trial court’s ruling, ‘whether or not that ground was relied upon or even considered by the court below.’ ” Appellee’s Brief at 12 (quoting United States v. Arthur Young & Co., 465 U.S. 805 , 814 n. 12, 104 S.Ct. 1495 , 1501 n. 12, 79 L.Ed.2d 826 (1984)). The Commonwealth’s reliance is misplaced. The rule articulated in Arthur Young and in Dandridge v. Williams, 397 U.S. 471 , 475 n. 6, 90 S.Ct. 1153 , 1156 n. 6, 25 L.Ed.2d 491 (1970), deals only with the situation where a lower court’s decision is sustainable on appeal on grounds different from those articulated by the lower court. The rule does not apply here, where the inquiry properly focuses on “the proof actually utilized” (Ragins, 840 F.2d at 1188 ) below to establish the two offenses for which the defendant was successively prosecuted.

The majority acknowledges the relevance of Jordan and Ragins but suggests that the second prosecution of Martin is permitted by Illinois v. Vitale, 447 U.S. 410 , 100 S.Ct. 2260 , 65 L.Ed.2d 228 (1980). In Vi-tale, the Supreme Court held that a prior conviction of a driver for failing to reduce speed to avoid automobile accident would bar, on double jeopardy grounds, a subsequent prosecution for involuntary manslaughter if “as a matter of Illinois law, a *964 careless failure to slow is always a necessary element of manslaughter by automobile,” id. at 419 , 100 S.Ct. at 2267 , or “if in the pending manslaughter prosecution Illinois relies on and proves a failure to slow to avoid an accident as the reckless act necessary to prove manslaughter.” Id. at 421 , 100 S.Ct. at 2267 . The Court stressed the risk inherent in the possibility that the state would use the same evidence, of failure to slow, in the second prosecution:

In any event, it may be that to sustain its manslaughter case the State may find it necessary to prove a failure to slow or to rely on conduct necessarily involving such failure; it may concede as much prior to trial. In that case, because Vi-tale has already been convicted for conduct that is a necessary element of the more serious crime for which he has been charged, his claim of double jeopardy would be substantial under Brown and our later decision in Harris v. Oklahoma, 433 U.S. 682 , 97 S.Ct. 2912 , 53 L.Ed.2d 1054 (1977).

Id. at 420, 100 S.Ct. at 2267 . The state had argued that other reckless acts, such as disobeying a crossing guard and failure to maintain brakes, could be used to prove the manslaughter charge. Id. at 418 & n. 7, 100 S.Ct. at 2266 & n. 7. The Supreme Court remanded the Vitale case for a determination of whether proving failure to slow was necessary as a matter of statute and whether the state in fact would rely again on the defendant’s failure to slow or would instead rely on other reckless acts to prove the manslaughter charge at the second trial. Id. at 421 , 100 S.Ct. at 2267 .

The majority concludes that Vitale permits the successive prosecutions of Martin because

Martin could have been tried for the crime charged in the second case under several different aggregations of proof his overt conduct in approaching the booth may have been enough.... he may have been seen pushing and pulling the sliding glass window to the cashier’s booth, and at another time he may have been seen with his hand in the opening created by the shattered glass. Each version would have been probative of the offense of attempted breaking and entering.

At 96 (emphasis supplied). But here, unlike in Vitale , we have already had the second trial. At the second trial, Virginia relied on the same evidence, relating to the broken glass door, that was used to secure Martin’s conviction in the first prosecution.

A small amount of evidence was indeed presented indicating that Martin had been seen pulling at the window before he smashed the door. However, had the window evidence been the only evidence permitted, Martin might well have been acquitted because the witness could not identify the man he saw pushing at the window. The evidence about the smashed glass door was thus necessary to prove the attempted breaking and entering charge at the second trial. The Supreme Court has used the words “necessary” and “necessarily” repeatedly in this connection. See, e.g., Vitale, 447 U.S. at 419, 420, 421 , 100 S.Ct. at 2266, 2267, 2267 . In Jordan,, we looked to “the evidence required to warrant a conviction.” 653 F.2d at 873 (emphasis supplied). Because only a wisp of evidence was presented to the jury about a man (possibly, but not necessarily, Martin) being observed by a passerby pushing and pulling at the cashier’s window, here it is abundantly clear that in the second prosecution Virginia in fact necessarily relied a second time on the broken door evidence to obtain a conviction for attempted breaking and entering. 1

It was therefore improper for the Commonwealth to run Martin through the gauntlet twice. It may be, as the majority suggests, that a second conviction could have been obtained without reliance on the same evidence used to convict Martin at his first trial. But because the second trial *965 has already been held, the relevant inquiry for us is ‘what was,’ not ‘what might have been.’ It is abundantly clear, as Virginia concedes, that the same evidence was used in both trials. It is also clear that the same evidence was necessary to obtain a conviction at the second trial, as the evidence presented would otherwise have been insufficient to convict the defendant. Following the controlling precedent of Jordan and Ragins , it is clear to me that the successive prosecutions of Martin violate the Double Jeopardy Clause. I therefore dissent.

. The only additional element actually proved in the second prosecution was specific intent to commit larceny. As in Brown , the difference was the defendant’s state of mind while he engaged in the conduct in question. See Garrett, 471 U.S. at 787 , 105 S.Ct. at 2415 , quoted supra at 963.