State v. Zawodniak

Ray Thornton, Justice, dissenting in part and concurring in part. While I agree with the majority that the trial court erred in granting a directed verdict acquitting appellee of simultaneous possession of drugs and firearms, I respectfully disagree that appellee can be tried a second time for the same offense. He was put in jeopardy, found guilty of the crime of possession of a controlled substance and possession of drug paraphernalia, and sentence was imposed.

The Double Jeopardy Clause of the Fifth Amendment states: “[N]or shall any person be subject for the same offence [sic] to be twice put in jeopardy of life or limb.” Article 2, § 8, of the Arkansas Constitution provides: “No person. . . shall be twice put in jeopardy of fife or liberty. . . .”

Many of the general principles underlying the Double Jeopardy Clause are analyzed in United States v. DiFrancesco, 449 U.S. 117 , (1980), where the Supreme Court notes that the guarantee against double jeopardy has been said

to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.

Around 10:00 in the morning of May 14, 1995, a Jacksonville Police Officer found appellee passed out or sleeping by a pay phone in front of a restaurant. After several attempts to awaken him, he identified himself, and the officer determined that there was an outstanding warrant for his arrest on hot check charges. The officer arrested and handcuffed appellee who volunteered that he had a handgun in his waistband, which the officer recovered, along with some drug paraphernalia, and 0.044 grams of methamphetamine and nicotinamide.

The State filed charges for violation of Ark. Code Ann. § 5-74-106 (Repl. 1993), simultaneous possession of drugs and firearms, and a second charge of violation of Ark. Code Ann. § 5-64-403 (Repl. 1993), possession of drug paraphernalia. Appellee waived his right to a trial by jury, and the trial took place on March 11,1996. After the State rested, appellee moved for a directed verdict because the State failed to prove that he intended to use the gun to protect his drugs, or further his delivery of drugs, specifically stating: “So, Judge what I am saying is that element is lacking and the state has failed to prove that element and it is required by law to be proven. Therefore, I would ask for the charge to be reduced to possession of a controlled substance, methamphetamine. ”

The trial court then granted the motion, basing its decision upon the legislative history of the statute as being related to gang activity, and found the appellee guilty of possession of methamphetamine and guilty of possession of drug paraphernalia. Sentence was imposed for these convictions.

We have previously addressed similar double jeopardy issues. In Strickbine v. State, 201 Ark. 1031 , 148 S.W.2d 180 (1941), we held that a determination of guilt in an inferior court on a lesser included charge operates as implied acquittal of the greater offense barring any further proceedings on the greater offense that places the defendant’s life or liberty in jeopardy. It should be noted that we were applying the Arkansas constitutional standard to this review. We have applied the same principle to a DWI second offense, and reversed the judgment of conviction in Hagar v. City of Fort Smith, 317 Ark. 209 , 877 S.W.2d 908 (1994).

In Brooks v. State, 308 Ark. 660 , 827 S.W.2d 119 (1992), we held that a trial court’s granting of a motion to dismiss constituted a judgment of acquittal on the robbery charge, and that the action of the judge later in the same trial in reversing that ruling and submitting the robbery charge to the jury constituted double jeopardy. To the same effect are our decisions in State v. Johnson, 317 Ark. 226 , 876 S.W.2d 577 (1994), and State v. Young, 315 Ark. 656 , 869 S.W.2d 691 (1994).

While these decisions clearly reflect the rule that a conviction of a lesser included offense constitutes an acquittal of the greater offense, it is not essential that there be an acquittal in order for jeopardy to attach so that a second trial is prohibited. Wayne R. Lafave and Jerold H. Isreal, Criminal Procedure § 25.1(g)(7), at 1064 (2nd ed. 1992) states the following:

If the jury reaches a verdict of acquittal or the judge grants a judgment of acquittal prior to jury verdict, double jeopardy bars a new trial even if it appears that the acquittal was based on an erroneous interpretation of the law. Included in the concept of an acquittal is the implied acquittal that comes when a jury returns a verdict of guilty on a lesser-included offense and fails to indicate its disposition of the higher charge.

In the case before us, jeopardy attached on the charge of simultaneous possession of drugs and firearms when the first witness was sworn. As stated in United States v. Scott, 437 U.S. 82 (1978), “a defendant once acquitted may not be again subjected to trial without violating the Double Jeopardy Clause.”

In Sanabria v. United States, 437 U.S. 54 (1978), a case handed down on the same day as Scott, supra, the Supreme Court expanded upon the principle as follows:

That “[a] verdict of acquittal . . . [may] not be reviewed . . . without putting [the defendant] twice in jeopardy, and thereby violating the Constitution,” has recently been described as “the most fundamental rule in the history of double jeopardy jurisprudence.” United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977), quoting United States v. Ball, 163 U.S. 662, 671 (1896). The fundamental nature of this rule is manifested by its explicit extension to situations where an acquittal is “based upon an egregiously erroneous foundation.” Fong Foo v. United States, 369 U.S. 141, 143 (1962); see Green v. United States, 355 U.S. 184, 188 (1957). In Fong Foo the Court of Appeals held that the District Court had erred in various rulings and lacked power to direct a verdict of acquittal before the government rested its case. We accepted the Court of Appeals’ holding that the District Court had erred, but nevertheless found that the Double Jeopardy Clause was “violated when the Court of Appeals set aside the judgment of acquittal and directed that petitioners be tried again for the same offense.” Fong Foo, 369 U.S. at 143 . Thus when a defendant has been acquitted at trial he may not be retried on the same offense, even if the legal rulings underlying the acquittal were erroneous.

Id. at 64.

In Sanabria, there were charges involving horse-betting and numbers violations, in a single gambling business. The defendant was acquitted on the horse-betting charge for insufficient evidence, and the numbers charge was dismissed. The First Circuit determined that the District Court had erred in “dismissing” the numbers theory, and remanded the case so that the defendant could be tried on the numbers charges. The Supreme Court reversed because retrial would violate the Double Jeopardy Clause, stating the following: “The Double Jeopardy Clause is not such a fragile guarantee that ... its limitations [can be avoided] by the simple expedient of dividing a single crime into a series of temporal or spatial units.” Id. at 72 (quoting Brown v. Ohio, 432 U.S. 161, 169 (1977)).

Here, appellee committed one offense. He was found sleeping in a public place with a small quantity of drugs, paraphernalia, and a gun in his possession. Jeopardy attached on the offense of violating the provisions of Ark. Code Ann. § 5-74-106 (a), when the first witness was sworn. Upon conclusion of the State’s case, the court determined that a necessary element of proof had not been presented on the question of simultaneous possession, granted a motion to dismiss, and found appellee guilty of possession of drugs and drug paraphernalia.

Appellee was tried and convicted. Certainly jeopardy attached, and his conviction resulted in deprivation of liberty. To send the matter back for a new trial on the offense for which he has already been in jeopardy violates the principles of the prohibition against double jeopardy. We should determine that the trial court committed error in granting the motion to dismiss but that the appellee cannot be retried. There was no appeal from the conviction and the sentence for possession, and of course that conviction and sentence remain fully effective.

It is my view that remanding the case for a new trial violates the prohibition against double jeopardy. We should declare error and reverse.

Brown and Imber, JJ., join.